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SAN  DIEGO 


fibrarn  Association  of  |)orthinb.  ^ 


Jli@'°ttTTtTMMiablo  iu- XVUw^tiw^ 


UNIVERSITY  OF  CALIFORNIA,  SAN  DIEGO 


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3  1822  01867  3467 


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A  A 

v./ 


HISTORY 


ORIGIN,   FORMATION,   AND   ADOPTION 


CONSTITUTION  OF  THE  UNITED  STATES ; 


NOTICES  OF  ITS  PRINCIPAL  FRAMERS. 


GEORGE   TICKNOR   CURTIS. 


IN    TWO    VOLUMES. 
VOLUME    I. 


NEW  YORK: 
HARPER  AND  BROTHERS, 

Fkanklin    Square. 

1  8  ti  .3. 


Entered  according  to  Act  of  Congress,  in  the  year  1854,  by 

GEORGE     T.     CURTIS, 

in  the  Clerk's  Office  of  the  District  Court  of  the  District  of  Massachusetts. 


TO 

GEORGE    TICKNOR,  Esq., 

THE     HISTORIAN     OF     SPANISH     LITERATURE, 

KY    WHOSE     ACCURATE     SCHOLARSHIP    AND    CAREFUL     CRITICISM 
THESE     PAGES     HAVE     LARGELY     PROFITED, 

I  DEDICATE   THIS  WORK, 

IN     AFFECTIONATE     ACKNOWLEDGMENT     OF     TIES, 

WHICH    HAVE    BEEN   TO    ME    CONSTANT    SOURCES    OF   HAPPINESS 
THROUGH     MY     WHOLE     LIFE. 


PREFACE. 


A  SPECIAL  history  of  the  origin  and  establish- 
ment of  the  Constitution  of  the  United  States  has 
not  yet  found  a  place  in  our  national  literature. 

Many  years  ago,  I  formed  the  design  of  writing 
such  a  work,  for  the  purpose  of  exhibiting  the 
deep  causes  which  at  once  rendered  the  Conven- 
tion of  1787  inevitable,  and  controlled  or  directed 
its  course  and  decisions ;  the  mode  in  which  its 
great  work  was  accomplished ;  and  the  founda- 
tions on  which  our  national  liberty  and  prosperity 
were  then  deliberately  settled  by  the  statesmen  to 
whom  the  American  Revolution  gave  birth,  and 
on  which   they  have  rested  ever  since. 

In  the  prosecution  of  this  purpose  I  had,  until 
death  terminated  his  earthly  interests,  the  encour- 
agement and  countenance  of  that  illustrious  person, 
whose  relation  to  the  Constitution  of  the  United 
States,  during   the   last   forty  years,  has   been   not 


VI  PREFACE. 

inferior  in  importance  to  that  of  any  of  its  found 
ers  during  the  precedmg  period. 

Mr.  Webster  had  for  a  long  time  the  intention 
of  writing  a  work  which  should  display  the  re- 
markable state  of  affairs  under  whose  influence  the 
Constitution  was  first  brought  into  practical  appli- 
cation ;  and  this  design  he  relinquished  only  when 
all  the  remaining  plans  of  his  life  were  surren- 
dered with  the  solemn  and  religious  resignation 
that  marked  its  close.  It  was  known  to  him  that 
I  had  begun  to  labor  upon  another  branch  of  the 
same  subject.  In  the  /spring  of  1852  I  wrote  to 
him  to  explain  the  plan  of  my  work,  and  to  ask 
him  for  a  copy  of  some  remarks  made  by  his  fa- 
ther in  the  Convention  of  New  Hampshire  when 
the  Constitution  was  ratified  by  that  State.  I  re- 
ceived from   him  the  following  answer. 

"Washington,  Marclj  7tli,  [1852]. 
"  My   dear   Sir,  — 

"  I  will  try  to  find  for  you  my  father's  speech, 
as  it  was  collected  from  tradition  and  published 
some  years  ago.  If  I  live  to  see  wami  weather  in 
Marshfield,  I  shall  be  glad  to  see  you  beneath  its 
shades,  and  to  talk  of  your  book. 

"  You  are  probably  aware  that  I  have  meditated 
the  writing  of  something  upon  the  History  of  the 
Constitution    and    tlie   Administration  of  "Washing- 


PREFACE.  Vii 

ton.  I  have  the  plan  of  such  a  work  pretty  defi- 
nitely arranged,  but  whether  I  shall  ever  be  able 
to  execute  it  I  cannot  say:  —  'the  wills  above  be 
done.' 

"Yours  most  truly, 

"Danl.  Webster." 

Regarding  this  kind  and  gracious  intimation  as 
a  wish   not   to  be   anticipated   in  any  part  of  the 
field  which  he  had  marked   out  for  himself,  I  re- 
pHed,  that  if,  when   I  should  have  the  pleasure  of 
seeing  him,  my  work  should  seem  to  involve  any 
material  part  of  the  subject  which  he  had  compre- 
hended within   his   own   plan,   I   should  of  course 
relinquish  it  at  once.     AVhen,  however,  the  period 
of  that  summer's  leisure  arrived,  and  brought  witli 
it,  to  his  watchful  observation,  so  many  tokens  that 
"the  night  cometh,"  he  seemed  anxious  to  impress 
upon  me  the  importance  of  the  task  I  had  under- 
taken, and  to  remove  any  obstacle  to  its  fulfilment 
that   he  might   have   suggested.      Being  with   him 
alone,  on  an  occasion  when  his  physician,  after  a 
long  consultation,  had  just  left  him,  he  said  to  me, 
with  an   earnestness  and  solemnity  that  can  never 
be  described  or  forgotten :  "  You  have  a  future ;   1 
have  none.     You  are  writing  a  History  of  the  Con- 
stitution.    You  will  write  that  work ;   I  shall  not 


Vm  PREFACE. 

Go  on,  by  all  means,  and  you  shall  have  every  aid 
that  I  can  give  you." 

The  event  of  which  these  words  were  ominous 
was  then  only  four  weeks  distant.  Many  times, 
during  those  short  remaining  weeks,  I  sought  "  the 
shades  of  Marshfield " ;  but  now  it  was  for  the 
offices  and  duties,  not  for  the  advantages,  of  friend- 
ship ;  —  and  no  part  of  my  work  was  ever  submit- 
ted to  him  to  whose  approbation,  sympathy,  and 
aid  I  had  so  long  looked  forward,  as  to  its  most 
important  stimulus  and  its  most  appropriate  re- 
ward. 

But  the  solemn  injunction  which  I  had  received 
became  to  me  an  ever-present  admonition,  and  gave 
me  —  if  I  may  make  such  a  profession  —  the  need- 
ful fidelity  to  my  great  subject.  Whatever  may  be 
thought  of  the  manner  in  which  it  has  been  treated, 
a  consciousness  that  the  impartial  spirit  of  History 
has  guided  me  will  remain,  after  every  ordeal  of 
criticism  shall  have  been  passed. 

And  here,  while  memories  of  the  earlier  as  well 
as  of  the  later  lost  crowd  upon  me  with  my  theme, 
I  cannot  but  think  of  him,  jurist  and  magistrate, 
friend  of  my  younger  as  well  as  riper  years,  who 
was  called  from  all  human  sympathies  before  I 
had   conceived  the  undertaking  which  T  have  now 


PREFACE.  IX 

completed.  Fortunate  shall  I  be,  if  to  those  in 
whom  his  blood  flows  united  with  mine  I  can 
transmit  a  work  that  may  be  permitted  to  stand 
near  that  noble  Commentary,  which  is  known  and 
honored  wherever  the  Constitution  of  the  United 
States  bears  sway. 

The  plan  of  this  work  is  easily  explained.  The 
first  volume  embraces  the  Constitutional  History 
of  the  United  States  from  the  commencement  of 
the  Revolution  to  the  assembling  of  the  Conven- 
tion of  1787,  together  with  some  notices  of  the 
principal  members  of  that  body.  The  second  vol- 
ume is  devoted  to  the  description  of  the  process  of 
formmg  the  Constitution,  in  which  I  have  mainly 
followed,  of  course,  the  ample  Record  of  the  De- 
bates preserved  by  Mr.  Madison,  and  the  official 
Journal  of  the  proceedings.^ 


1  In  citing  the  "  Madison  Pa-  ject  of  this  work.  In  this  rela- 
pers,"'  I  have  constantly  referred  tion,  I  may  suggest  the  desira- 
to  the  edition  contained  in  the  bleness  of  a  new  and  carefully  re- 
fifth  (supplementary)  volume  of  vised  edition  of  the  Journals  of  the 
Mr.  Jonathan  Elliot's  "  Debates,"  old  Congress  ;  —  an  enterprise  that 
&c.,  because  it  is  more  accessible  should  be  the  care  of  the  national 
to  general  readers.  The  accuracy  government.  A  great  magazine  ot 
of  that  publication,  and  its  full  materials  for  our  national  history, 
and  admirable  Index,  make  it  a  from  the  first  Continental  Congress 
very  important  volume  to  be  con-  to  the  adoption  of  the  Constitution 
suited  in  connection  with  the  sub-  exists  in  those  Journals. 

VOL.   I.  h 


X  PREFACE. 

The  period  of  our  history  from  the  commence' 
ment  of  the  Revolution  to  the  beginnmg  of  Wash- 
ington's administration  is  the  period  when  our 
State  and  national  institutions  were  formed.  With 
the  events  of  the  E.6 volution,  its  causes,  its  prog 
ress,  its  military  history,  and  its  results,  the  people 
of  this  country  have  long  been  familiar.  But  the 
constitutional  history  of  the  United  States  has  not 
been  written,  and  few  persons  have  made  them- 
selves accurately  acquainted  with  its  details.  How 
the  Constitution  of  the  United  States  came  to  be 
formed ;  from  what  circumstances  it  arose ;  what 
its  relations  were  to  institutions  previously  existing 
in  the  country ;  what  necessities  it  satisfied ;  and 
what  was  its  adaptation  to  the  situation  of  these 
States,  —  are  all  points  of  the  gravest  importance 
to  the  American  people,  and  all  of  them  require  to 
be  distinctly  stated  for  their  permanent  welfare. 

For  the  history  of  this  Constitution  is  not  like 
the  history  of  a  monarchy,  in  which  some  things 
are  obsolete,  while  some  are  of  present  importance. 
The  Constitution  of  the  United  States  is  a  living 
code,  for  the  perpetuation  of  a  system  of  free  gov- 
ernment, which  the  people  of  each  succeeding  gen- 
eration must  administer  for  themselves.  Every  line 
of  it  is  as  operative   and   as   binding   to-day  as  it 


PREFACE.  XI 

was  when  the  government  was  fiist  set  in  motion 
by  its  provisions,  and  no  part  of  it  can  fall  into 
neglect  or  decay  while  that  government  continues 
to  exist. 

The  Constitution  of  the  United  States  was  thf- 
means  by  which  republican  liberty  was  saved  from 
the  consequences  of  impending  anarchy ;  it  secured 
that  liberty  to  posterity,  and  it  left  it  to  depend  on 
their  fidelity  to  the  Union.  It  is  morally  certain 
that  the  formation  of  some  general  government, 
stronger  and  more  efficient  than  any  which  had 
existed  smce  the  independence  of  the  States  had 
been  declared,  had  become  necessary  to  the  con- 
tinued existence  of  the  Confederacy.  It  is  equally 
certain,  that,  without  the  preservation  of  the  Union, 
a  condition  of  things  must  at  once  have  ensued, 
out  of  which  wars  between  the  various  provinces 
of  America  must  have  grown.  The  alternatives, 
therefore,  that  presented  themselves  to  the  gener- 
ation by  whom  the  Constitution  was  established, 
were  either  to  devise  a  system  of  republican  gov- 
ernment that  would  answer  the  great  purposes  of 
a  lasting  union,  or  to  resort  to  something  in  the 
nature  of  monarchy.  With  the  latter,  the  institu- 
tions of  the  States  must  have  been  sooner  or  later 
crushed ;  —  for    they   must    either    have    crumbled 


XU  PREFACE. 

away  in  the  new  combinations  and  fearful  convul 
sions  that  would  have  preceded  the  establishment 
of  such  a  power,  or  else  they  must  have  fallen 
speedily  after  its  triumph  had  been  settled.  With 
the  former  alternative,  the  preservation  of  the  States, 
and  of  all  the  needful  institutions  which  marked 
their  separate  existence,  though  a  difficult,  was  yet 
a  possible  result. 

To  this  preservation  of  the  separate  States  we 
owe  that  power  of  minute  local  administration, 
which  is  so  prominent  and  important  a  feature  of 
our  American  liberty.  To  this  w^e  are  indebted 
for  those  principles  of  self-government  which  place 
their  own  interests  in  the  hands  of  the  people  of 
every  distinct  community,  and  which  enable  them, 
by  means  of  their  own  laws,  to  defend  their  own 
particular  institutions  against  encroachments  from 
without. 

Finally,  the  Constitution  of  the  Uflited  States 
made  the  people  of  these  several  provinces  one  na- 
tion, and  gave  them  a  standing  among  the  nations 
of  the  world.  Let  any  man  compare  the  condition 
of  this  country  at  the  peace  of  1783,  and  during 
the  four  years  which  followed  that  event,  with  its 
present  position,  and  he  will  see  that  he  must  look 
to    some  other   cause   than  its   merely  natural  and 


PREFACE.  XIU 

material  resources  to  account  for  the  proud  eleva- 
tion which  it  has  now  reached. 

He  will  see  a  people  ascending,  in  the  compara- 
tively short  period  of  seventy  years,  from  an  atti- 
tude in  which  scarcely  any  nation  thought  it  worth 
while  to  treat  with  them,  to  a  place  among  the  four 
principal  powers  of  the  globe.  He  will  see  a  na- 
tion, once  of  so  little  account  and  so  little  strength 
that  the  corsairs  of  the  Mediterranean  could  prey 
unchecked  upon  its  defenceless  merchantmen,  now 
opening  to  their  commerce,  by  its  overawing  diplo- 
macy and  influence,  an  ancient  empire,  on  the  op- 
posite side  of  the  earth  we  mhabit,  which  has  for 
countless  ages  been  firmly  closed  against  the  whole 
world.  He  will  first  see  a  collection  of  thirteen  fee- 
ble republics  on  the  eastern  coast  of  North  America, 
inflicting  upon  each  other  the  manifold  injuries  of 
rival  and  hostile  legislation ;  and  then  again  he  will 
behold  them  grown  to  be  a  powerful  confederacy 
of  more  than  thirty  States,  stretching  from  the  At- 
lantic to  the  Pacific,  with  all  their  commercial  inter- 
ests blended  and  harmonized  by  one  superintending 
legislature,  and  protected  by  one  central  and  pre- 
ponderating power.  He  will  see  a  people  who  had 
at  first  achieved  nothing  but  independence,  and  had 
contributed  nothing  to  the  cause  of  free  government 


XIV  PREFACE. 

but  the  example  of  their  determination  to  enjoy  it, 
founding  institutions  to  which  mankind  may  look 
for  hope,  for  encouragement  and  light.  He  will  see 
the  arts  of  peace  —  commerce,  agriculture,  manufac- 
tures, jurisprudence,  letters  —  now  languishing  be- 
neath a  civil  polity  inadequate  and  incompetent, 
and  now  expanding  through  a  continent  with  an 
energy  and  force  unexampled  in  the  history  of  our 
race,  —  subduing  the  farthest  recesses  of  nature, 
and  filling  the  wilderness  with  the  beneficent  fruits 
of  civilization  and  Christianity. 

Surveying  all  this,  —  looking  back  to  the  period 
which  is  removed  from  him  only  by  the  span  of 
one  mortal  life,  and  looking  around  and  before 
him,  he  will  see,  that  among  the  causes  of  this 
unequalled  growth  stands  prominent  and  decisive, 
far  over  all  other  human  agencies,  the  great  code 
of  civil  government  which  the  fathers  of  our  re- 
public wrought  out  from  the  very  periis  by  which 
they  were  surrounded. 

It  is  for  the  purpose  of  tracing  the  history  of 
the  period  in  which  those  perils  were  encountered 
and  overcome,  that  I  have  written  this  work.  But 
in  doing  it,  I  have  sought  to  write  as  an  American. 
For  it  is,  I  trust,  impossible  to  study  the  history  of 
the  Constitution  which  has  made  us  what  we  are. 


PREFACE.  XV 

by  making  us  one  nation,  without  feeling  how  lui- 
worthy  of  the  subject— how  unworthy  of  the  dig- 
nity of  History  —  would  be  any  attemxDt  to  claim 
more  than  their  just  share  of  merit  and'reno^\ii  for 
names  or  places  endeared  to  us  by  local  feelino-  or 
traditionary  attachment.  Historical  writing  that  is 
not  just,  that  is  not  impartial,  that  is  not  fear- 
less, —  looking  beyond  the  interests  of  neighbor- 
hood,  the  claims  of  party,  or  the  solicitations  of 
pride,  —  is  worse  than  useless  to  mankind. 

Boston,  July,  1854. 


CONTETNS 


OF 


YOLUME   FIEST 


BOOK    I. 

IHE  CONSTITUTIONAL  HISTORY  OF  THE  UNITED  STATES 
FROM  THE  COMMENCEMENT  OF  THE  REVOLUTION  TO 
THE  ADOPTION  OF  THE  ARTICLES  OF  CONFEDERA- 
TION. 

CHAPTER    I. 

1774-1775. 

Organization  of  the  First  Continental  Congress.  —  Origin  of  the 
Union.  —  Situation  of  the  Colonies  before  the  Revolution. 

Page 

Political  Organizations  of  the  Colonies         .....  3 

Provincial  Governments          ........  4 

Proprietary  Governments   ........  5 

Charter  Governments    .........  5 

Causes  of  the  Revolution    .........  6 

Local  Legislatures         ...                  .....  7 

Power  of  the  Colonies  to  unite,  asserted  by  the  Revolution  .        .  8 

Reasons  why  they  were  enabled  to  effect  the  Union          ...  8 

A  General  Congress            ........  10 

First  Step  towards  it     . 11 

Assembling  of  the  Congress        .         .         .  •      .         .         .         .  13 

Delegates     ...........  14 

Method  of  Voting .15 

Rights  of  the  Colonies 16 

Separation  from  Great  Britain  not  contemplated            ...  18 

Relations  of  the  Congress  to  the  Country         .....  19 

Authority  of  Parliament    .         . '       .         .         ....  20 

Declaration  of  Rights     .......  .22 

Cessation  of  Exports  and  Imports        .         .                  ...  23 

VOL. I  c 


XVlll  CONTENTS. 

Anotlier  Congress  proposed   ........  25 

Royal  Government  terminated  in  Massachusetts  ....  25 

Provincial  Congress  of  Massachusetts 26 

Battle  of  Lexington 27 

C  H  A  P 1^  E  R    II. 
1775-1776. 
The  Second  Continental   Congress.  —  Formation  and   Character 
OF  THE  Revolutionary  Government.  —  Appointment  of  a  Com- 
mander-in-chief.—  First  Army  of  the  Revolution. 

NewT  Continental  Congress 28 

Delegates     ...........     29 

Colonies  represented  .         .         .         .         .         .         .         .         29 

Duration  of  this  Congress      ........     .30 

War  commenced        .         .         .         .         .         .         .         ,         .         31 

Massachusetts  and  New  York  apply  to  the  Congress  for  Direction 
and  Assi  tance      .........         31 

The  Congress  proceeds  to  put  the  Country  into  a  State  of  Defence  .     32 

American  Continental  Army  created 32 

Washington  chosen  Commander-in-Chief 33 

Measures  to  defray  the  Expenses  of  War 34 

Treasury  Department  established  ....  .         .     35 

General  Post-office  organized      ...*...         35 

Militia 35 

Relations  with  Indian  Tribes      .......         35 

Royalists      ...........     36 

The  Congress  advise  Provisional  Governments     ....         37 

Separation  from  England  determined  upon      .         .         .         .         .38 

Suppression  of  the  Royal  Authority    ....'.         39 

National  Union  formed  before  the  State  Governments      .         .         .39 
The  Revolutionary  Government  ......         40 

Note  on  Washington's  Appointment  as  Commander-in-Chief   .         .41 

CHAPTER    III. 

177G-1777. 

Continuance  of   the   Revolutionary  Government.  —  Declaration 

OF  Independence. —  Preparations  for    a    New   Government. — 

Formation  of  the  Continental  Army. 

Independence  proposed        ...  .  49 

Committee  to  prepare  the  Declaration     .         .         ,         .         .  50 


CONTENTS. 


xjx 


Instructions  to  the  Delegates •         .  51 

Declaration  adopted    .........  51 

Consequences  of  its  Adoption  ...         .         .         .         .         .51 

The  Title  "  United  Slates  of  America"  first  used       ...  52 
Articles  of  Conl'ederation  proposed           ....                   .53 

The  Revolutionary  Congress,  the  Real  Government     ...  54 

Power  of  the  Congress           ........  55 

General  Washington's  Position  .......  55 

Difficulties  which  he  had  to  encounter     ......  50 

Machinery  of  Government  defective     ......  57 

Formation  of  the  Army          ........  58 

Remodelling  of  the  Army           .......  59 

Difficulties  attending  it           ........  59 

Committee  appointed  to  confer  with  General  Washington      .         .  60 

Error  of  Short  Enlistments 60 

Washington  does  not  concur  in  their  Expediency         ...  60 

Powers  of  the  National  Government       ......  62 

Difficulties  attending  their  Exercise     ......  63 

Popular  Feeling  about  the  Grievances     .*....  64 

Tories       ...........  65 

Officers  of  the  Royal  Government  in  New  Hampshire  seized     .         .  66 

General  Lee's  Offer  to  seize  the  Tories  of  New  York  ...  66 

He  prepares  to  defend  New  York  .......  67 

Orders  to  disarm  the  Tories  in  Queen's  County  ....  68 

Orders  countermanded  .........  68 

Washington's  Regret          ........  69 

His  Directions  to  Lee    .........  70 

Tories  of  Queen's  County  arrested      ......  71 

Inhabitants  of  New  York  alarmed            ......  71 

Congress  compelled  to  submit  the  Subject  to  the  Colonial  Authorities  72 

Questions  of  Prize          .........  73 

Origin  of  the  American  Navy     .......  73 

Vessels  fitted  out  to  intercept  the  Enemy's  Supplies         .         .         .73 

Falmouth  burned       .........  74 

Letters  of  Marque  and  Reprisal .75 

Prizes  captured           ....••...  75 

Adjudication  of  Prizes  .........  76 

Delay  in  obtaining  Decisions      .......  77 

Means  of  defraying  the  Public  Expenses          .....  77 

Paper  Money  issued  .........  78 

Delay  in  Signing  the  Bills     ........  79 

Pressing  Wants  of  the  Army      ...  79 


XX 


CONTENTS. 


Washington  borrows  Money  of  the  Province  of  Massachusetts  Bay       80 
Defects  of  the  Revolutionary  Government  .         ,         .         .80 

Jealousy  of  Standing  Armies      .......         80 

Note  on  the  Authorship  of  the  Declaration  of  Independence     .         .     81 


CHAPTER    IV. 

July,  1770 -November,  1777. 

Consequences  of  the  Declaration  of  Independence.  —  Reorgani- 
zation OF  THE  Continental  Army.  —  Flight  of  the  Congress 
FROM  Philadelphia.  —  Plan    of    the   Confederation  proposed. 

Effect  of  the  Declaration  of  Independence    .....  89 

More  vigorous  and  decisive  Measures  adopted  by  the  Congress          .  90 

Mischievous  Adhesion  to  State  Interests      .....  90 

History  of  the  Army      .........  9i 

General  Washington  abandons  the  City  of  New  York           .         .  91 
Writes  to  the  President  of  Congress       .         .         .         .         .         .91 

He  retreats  to  the  Heights  of  Haerlem,  and  again  appeals  to  Congress  92 

The  Congress  organizes  a  new  Army      ......  92 

Number  of  Battalions  raised  by  each  State            ....  93 

Inducements  to  enlist     .........  93 

Serious  Defects  in  the  Plan 93 

Washington  suggests  a  Remedy     .......  94 

Promotion  of  the  Officers  provided  for           .....  95 

Another  Defect  in  the  Plan    ........  95 

Massachusetts  and  Connecticut  offer  further  Pay  to  their  Men        .  95 

Washington  remonstrates       ........  96 

Congress  augments  the  Pay  of  the  Army     .....  96 

111  Effects  of  the  System 96 

Number  of  the  American  Forces  near  New  York          ...  96 

Washington's  Discouragement       .......  97 

His  Situation  and  Trials     ........  97 

His  Retreat  through  New  Jersey    .......  98 

Loss  of  Philadelphia  threatened           ...                   .         .  99 

Washington  asks  for  Extraordinary  Powers  from  the  Congress         .  100 

Powers  intrusted  to  him      ........  100 

Unsettled  Condition  of  the  Political  System     .         .         .  .101 

The  Congress  apologizes  to  the  Governors  of  the  States        .         .  102 

Inaccuracy  of  their  Position    ......                   .  lO.'J 

The  States  acquiesce  in  the  Powers  granted  to  Washington           .  104 

Articles  of  Confederation  pending  in  Congress         .         .                  .  104 


CONTENTS.  XXI 

fiminent  Men  retire  from  Congress    ......  104 

Delegations  of  the  States  renewed         ......     105 

Striking  Instance  of  State  Jealousy   ......  106 

Washington  requires  an  Oath  of  Allegiance  to  the  United  States  .     107 

Tlie  Requisition  denounced  as  improper     .....  107 

Its  Propriety        ..........      108 

Formation  of  a  new  Army         .         .         .         •         .         .         .  110 

Embarrassments  in  the  Formation  of  the  Army     .         .         .  .110 

Persistence  of  the  States  in  giving  Extra  Bounties      .         .         .  110 

Bounty  offered  by  Massachusetts  .         .         .         .         .         .  .111 

Army  greatly  reduced       .         .         .         .         .         .         .         .  Ill 

Washington  hindered  in  his  Efforts  to  plan  and  carry  out  a  Cam- 
paign         ..........  112 

Applications  for  Troops  to  defend  particular  Neighborhoods  .  .112 

Battle  of  the  Brandywine           .......  113 

The  Congress  leaves  Philadelphia         .         .         •         .         .  .113 

Sir  William  Howe  takes  Possession  of  it           .         .         .         .  113 

The  Congress  removes  to  Yorktown      .         .         .         .         .  .113 

They  resolve  to  consider  the  Articles  of  Confederation        .         .  114 

The  Plan  of  a  Confederacy  submitted  to  the  several  Legislatures  .     114 

Necessity  for  a  National  Government          .          .         .         .         .  114 

End  of  the  Revolutionary  Government  approaching         .         .  .     115 

Want  of  a  Civil  Executive        .         .         .         .         .         .         .  115 

States  engaged  in  forming  Governments         .         .         .         .  .116 

Colonies  accustomed  to  the  Business  of  Government   .         .         .  116 

Practice  of  Representation  familiar       .         .         .         .         .  .117 

Previous  Political  Training  of  the  People  .         ....  118 

Distinctions  between  the  Departments  of  Government     .         .  .119 

Ideas  not  yet  applied  to  a  General  Government  ....  120 

Union  of  the  People  of  the  United  States,  as  distinguished   from  a 

Union  of  the  States,  learned  by  a  bitter  Experience  .         .  .      122 

First  Stage  in  the  Constitutional  History  of  the  Country     .         .  123 

CHAPTER    V. 

November,  1777 -March,  1781. 

Adoption  of  the  Articles  of  Confeder.^tion.  —  Cessions  of  West- 
ern Territory.  —  First  Political  Union  of  the  States. 

Adoption  of  the  Articles  of  Confederation            ....  124 

Causes  which  delayed  the  Adoption  of  the  Confederation        .  .      125 

Changes  of  the  ^lembors  of  Congress                   .          .          .          ,  12>' 


XXU  CONTENTS. 

The  present  Congress  compared  with  that  of  1776          .         .         .  127 

Objections  made  to  the  Articles  of  Confederation         .         .         .  128 

Propositions  for  Amendments  rejected  ......  129 

Objection  made  by  the  State  of  New  Jersey       ....  129 

Their  Suggestion  rejected    .         .         .         .         .         .         .         .130 

Claims  of  the  Larger  States  to  Vacant  Lands      ....  131 

Objection  of  the  Smaller  States    .         .         .         .         .         .         .131 

Assent  of  Maryland  to  the  Confederation  withheld      .         .         .  13"? 
New  York  authorizes  its  Delegates  in  Congress  to  limit  the  West- 
ern Boundaries  of  the  State          ......  134 

(vongress  urges  other  States  to  surrender  a  Portion  of  their  Claims  13*1 

Generous  Example  of  New  Jersey    ......  135 

Delaware  follows  it     .         .         .         .         .         .         .         .         .135 

Maryland  adopts  the  Articles  of  Confederation  ....  136 

Virginia  yields  her  Claim  to  some  of  her  Territory         .         .         .  137 
Progress  of  the  People  of  the  United  States  towards  a  National 

Character       ..........  139 

Security  against  a  Dissolution  of  the  Confederacy       .         .         .  140 

CHAPTER    VI. 

Nature  and  Powers  of  the  Confederation. 

Nature  of  the  Government  established  by  the  Confederation    .         .  142 
Provisions  in  the  Confederation  for  the  States  as  separate  Commu- 
nities    ...........  143 

Form  of  Government  established  by  it       .         .         .         .         .  143 

The  Confederation  a  League  for  Mutual  Defence  and  Protection      .  144 
Powers  of  Congress  with  regard  to  the  External  Relations  of  the 

Country 144 

Powers  of  Congress  with  regard  to  Internal  Affairs    .         .         .  145 

Committee  of  the  States  to  sit  in  the  Recess  of  Congress     ^  .         .  146 

Restrictions  imposed  upon  Congress           .....  146 

Revenues  of  the  Country      ........  147 

No  Provision  for  enforcing  Measures  adopted  by  Congress          .  148 

The  United  States  enter  upon  a  New  Era  of  Civil  Polity       .         .  149 
The  Confederation  demonstrates  the  Necessity  for  a  more  perfect 

Union M3 


CONTENTS.  XXm 


B  0  0  K    1 1 . 

THE  CONSTITUTIONAL  HISTORY  OF  THE  UNITED  STATES, 
FROM  THE  ADOPTION  OF  THE  ARTICLES  OF  CONFED- 
ERATION, IN  1781,  TO  THE  PEACE  OF  1783. 

CHAPTER    I. 

1781-1783. 

Requisitions. — Claims  of   the  Army.  —  Newburgh   Addresses. — 
Peace  proclaimed.  —  The  Army  disbanded. 

Congress  assembles  under  the  Confederation      ....  155 

Treaty  of  Peace  signed         ........  155 

Treaty  of  Alliance  with  France         ......  156 

Delay  of  the  States  in  complying  with  the  Requisitions  of  Congress  156 
Washington  addresses  Letters  to  the  States  on  the  Subject  of  Fi- 
nance, and  completing  their  Quotas  of  Troops          .         .         .  157 
Force  of  the  Army  .........  158 

Discontents  in  the  Army      ........  158 

The  Newburgh  Addresses         .......  159 

Congress  votes  an  Establishment  of  Half-Pay  for  the  Officers          .  160 

Impracticable  Adherence  to  the  Principles  of  Civil  Liberty           .  161 

Provision  for  the  Officers  found  to  be  inadequate     ....  162 

Congress  recommends  to  the  States  to  make  Provision  for  the  Offi- 
cers and  Soldiers    .........  162 

Pennsylvania  places  her  Officers  upon  Half-Pay  for  Life     .        ..  163 

Congress  pass  a  Resolve  giving  Half-Pay  for  Life  to  the  Officers   .  163 

Disappointment  of  the  Officers           ......  164 

The  Congress  of  the  Confederation  refuse  to  redeem  the  Pledge  of 

the  Revolutionary  Congress         .         .         .         .         .         .  164 

Officers  offer  to  commute  the  Half-Pay  for  Life     ....  165 

Breach  of  Public  Faith 166 

Situation  of  Washington       ........  107 

Anonymous  Address  circulated  among  the  Officers  at  Newburgh  168 
Washington  forbids  an  Assemblage  at  the  Call  of  an  Anonymous 

Paper 168 

He  appoints  a  Day  to  hear  the  Report  of  their  Committee  .         .  168 

The  Officers  again  refer  their  Claims  to  the  Consideration  of  Congress  169 

Half-Pay  commuted  to  Five  Years'  Full  Pay         ....  170 

The  Army  disbanded        ........  170 

Falue  of  the  Votes  which  fixed  the  Compensation  of  the  Officers  171 


XXIV  CONTENTS. 

CHAPTER    II. 

1781-1783. 

Financial    Difficulties   of   the   Confederation.  —  Revolutionar'5 
Debt.  —  Revenue  Sy.stem  of  1783. 

Public  Debt  of  the  United  States 172 

Congress  recommend  a  Duty  upon  Importations     ....  173 

Office  of  Superintendent  of  Finance  established  .  -      .         .         .  174 
Rhode  Island  refuses  to  grant  to  Congress  the  Power  of  Levying 

Duties 174 

Virginia  repeals  the  Act  by  which  she  had  granted  this  Power  to 

Congress    ..........  175 

No  Means  of  paying  the  Public  Debts  ......  175 

Another  Plan  for  collecting  Revenues  recommended  to  the  States  176 

Strong  Appeal  to  the  People  in  Favor  of  it    .....  177 

Claims  of  the  various  Classes  of  the  Public  Creditors  .         .  178 

Character  of  the  United  States  involved         .....  179 

The  Confederation  a  Government  for  Purposes  of  War        .         .  181 

Its  Great  Defects 181 

The  Moral  Feelings  an  Unsafe  Reliance  for  the  Operations  of  Gov- 
ernment        ..........  183 

Proofs  of  this  in  the  History  of  the  Confederation        .         .         .  184 
Design  of  the  Framers  of  the  Revenue  System      .         .         .         .185 

Claims  of  the  Army 186 

Wisdom  of  proposing  a  Scheme   of  Finance  during  the  Continu- 
ance of  the  War  ........  186 

Influence  of  the  Revenue  System  of  1783       .....  188 

The  System  of  1783  diffi^rent  from  the  Present  Constitution        .  188 

Note  on  the  Half-Pay  for  the  Officers  of  the  Revolution  .         .  190 

Note  on  the  Newburgh  Addresses     ......  194 

CHAPTER    III. 

1781-1783. 

Opinions    and  Efforts    of  Washington,    and   of   Hamilton  —  De- 
cline OF  THE  Confederation. 

Washington's  Relations  to  the  People  of  this  Country         .         .  200 
His  Address  to  them  on  resigning  his  Office          .         .         .         .201 

His  Views  at  the  Close  of  the  War 202 

Hamilton's  Opinions    .........  203 

His  Advice  and  Suggestions     ....  .  204 

The  Necessity  for  a  Complete  Sovereignty  in  Congress  .         .  204 


CONTENTS. 


XXV 


Hamilton's  Entry  into  Congress 

Nature  of  a  Federal  Constitution  not  ^derstood 
Hamilton  urges  the  Necessity  of  vesting  the  Appointment  of  Col- 
lectors of  Revenue  in  the  General  Government 
Ratio  of  Contribution  by  the  States  to  the  Treasury  uncertain 

Hamilton  desires  to  change  the  Principle  of  the  Confederation     . 

Advises  General  Taxes  to  be  collected  under  Continental  Authority 

An  Attempt  to  substitute  Specific  Taxes  on  Land  and  Houses 

It  is  determined  to  adopt  Population  as  the  Basis  of  Contribution 

Hamilton's  Views  on  a  Peace  Establishment  .... 

Committee  to  arrange  the  Details  of  such  a  System    . 

An  Army  and  Navy  necessary      .         .         .         .      '  . 

No  Provision  in  the  Articles  of  Confederation  for  their  Maintenance 
during  Peace  ••....... 

Hamilton  advises  Federal  Provision  for  Defence 

Congress  driven  from  Philadelphia 

Hamilton  examines  the  Confederation         .... 

Its  Defects  .......... 

He  proposes  to  revise  it 

His  Plan  unsuccessful  ....... 

Improvement  in  the  Revenue  System 

Causes  of  the  Decline  of  a  National  Spirit    .... 

Falling  off  in  the  Attendance  of  Members  of  Congress 

Results  of  the  Confederation  ...... 

Its  Defects  displayed         ....... 

Another  Government  necessary  for  the  great  Duties  of  Peace 


206 

206 

208 
210 
211 
212 
212 
213 
214 
215 
216 


216 
219 
220 
221 
222,  223 
224 
224 
225 
226 
226 
228 
229 
230 


BOOK  III. 

THE  CONSTITUTIONAL  HISTORY  OF  THE  UNITED  STATES, 
FROM  THE  PEACE  OF  1783  TO  THE  FEDERAL  CON- 
VENTION OF   17^7. 

CHAPTER    I. 

January,  1784 -May,  1787. 

Duties     and    Necessities     of     Congress.  —  Requisitions    on     the 

States.  —  Revenue  System  of  1783. 
State  of  the  Union  from  1783  to  1787    ...  .         ,     233 

Dangers  and  Evils  which  existed  during  the  Four  Years  aftoi  the 

^V^'- 234 

VOL.   I.  d 


XXVI 


CONTENTS. 


A  New  Congress         ....... 

Washington's  Resignation         •     4  ■ 

Congress  urge  the  Attendance  of  absent  Members  . 

Ratification  of  the  Treaty  of  Peace    .... 

Congress  perpetually  in  Session  during  the  War    . 

Number  of  Delegates  from  each  State 

Low  State  of  the  Representation  ..... 

Duties  of  the  Government         ..... 

Supplies  for  the  'Year  1784  ...... 

How  to  be  obtained .         .         .         .         ^         .         . 

Old  Requisitions  unpaid        ...... 

Supplies  necessary  for  the  Year  1785 

Supplies  necessary  for  the  Year  1786  .... 

Rhode  Island  and  New  Jersey  propose  to  pay  their  Quotas  in  their 
own  Paper  Currency       .  ..... 

Inadequacy  of  Requisitions 


235 

235 
236 
237 
238 
238 
239 
240 
240 
241 
241 
242 
.242 

242 
243 

States  which  had  assented  to  the  Revenue  System  in  February,  1786  244 
Congress  make  known  the  Public  Embarrassments     .         .         .         245 
Impost  granted  by  all  the  States  except  New  York        .         .         .     246 
Argument  used  in  Support  of  her  Refusal .         ....         247 

Hamilton's  Answer  to  it       .         .         .         .         .         .         .         .     247 

Congress  recommend  to  New  York  to  reconsider  the  Revenue  System  247 
The  Governor  refuses  to  summon  the  Legislature  .  .  .  247 
Failure  of  the  Revenue  System    .......     248 


CHAPTER    II. 

1784-1787. 

Infractions  of  the  Treaty  of  Peace. 

Provisions  of  the  Treaty  of  Peace 249 

Departure  of  the  British  Troops  from  the  Atlantic  Coast    .         .  249 

Western  Posts  retained         ........  249 

Interests  of  British  Subjects      .         .         .         .*      .         .         .  S50 

Confiscated  Property    .........  250 

Power  of  Confiscation  belonging  to  the  United  States          .         .  252 

Refugees 252 

State  Laws  prohibiting  the  Recovery  of  British  Debts           .         .  253 
Articles  of  the  Treaty  infringed  by  New  York      .         .         .      254,255 

Powers  of  the  Government  inadequate       .....  255 

Treaty  of  Peace           .........  256 

Violations  of  its  Articles  ........  257 


CONTENTS.  XXVll 

Ck)ngress  recommend  to  Uie  States  to  repeal  all  Acts  repugnant  to 


the  Treaty 

The  two  Countries  remain  in  the  same  Position    . 


258 
259 


CHAPTER    III. 

1786  - 1787. 
No   Security    afforded    by    the    Confederation    to    the    State 

Governments.  —  Shays's  Rebellion  in  Massachusetts,  and  its 

Kindred  Disturbances. 
Defence  against  External  Assaults,  the  Object  of  the  Confederation     :Q60 
Construction  of  the  State  Constitutions 


Fundamental  Doctrine  of  the  American  Constitutions 
Commencement  of  Discontents  in  Massachusetts    . 
The  Confederation  without  Power  to  act  upon  the  Internal 
lion  of  a  State        ....... 

State  Governments  exposed  to  the  Dangers  of  Anarchy 
Insurrection  in  Massachusetts        ..... 

Debt  of  that  State  at  the  Close  of  the  War 

Decrease  of  Exports  and  Fisheries        .... 

General  Condition  of  the  State  .... 

Private  Debts      .         .         .         ;         ... 

The  Tender  Act       ....... 

Effects  of  this  Law       . 

Shays's  Rebellion    ....... 

Firmness  of  Governor  Bowdoin    ..... 

Insurrection  suppressed    ...... 

Congress  unable  to  interpose         .         .         .         .    '     . 

Hostile  Disposition  of  the  Western  Indians 

Troops  to  be  raised  by  the  New  England  States    . 

Extent  of  the  Disaffection  in  New  England 

Beneficial  Effect  of  these  Disturbances 

The  Union  necessary  to  the  Preservation  of  Order 

Washinston's  Anxieties'     ...... 


.     261 

262 
.     263 
Condi- 
264,  265 

265 
.     266 

266 

.     267 

267,  268 

.     268 

268 
.     269 

269 
.     270 

270 
.     271 

271 
.     272 

273 
.     273 

274 
.     274 


CHAPTER    IV. 

Origin  and  Necessity  of  the  Power  to  regulate  Commerce. 

Inability  of  the  Confederation  to  manage  Foreign  Commerce  .     376 

Essential  that  it  should  be  managed  by  the  United  States  .         .         277 
Views  of  the  Revolutionary  Statesmen  ....      277,  278 

Commercial  Rehitions  of  the  United  States  wiih  Foreign  Countries     279 


XXVni  CONTENTS. 

Negotiation  of  the  Treaty  with  the  Netherlands     ....  280 

Duties  and  Imposts  .         ........  281 

Congress  without  Power  to  enforce  Treaty  Stipulations  upon  the 

States 282 

Relations  of  the  United  States  with  Great  Britain  ....  282 

Measure  of  Mr.  Pitt 282 

Change  of  the  English  Administration  .         .....  283 

Mr.  Pitt's  Bill 283 

Views  of  the  New  English  Administration    ....     283,284 

American  Trade  excluded  from  the  British  West  Indies     .         .  284 

The  three  great  Branches  of  American  Commerce           .         .         .  285 

Congress  apply  to  the  States  for  further  Powers          .         .          .  286 

Action  of  the  States  thereupon      .......  286 

Success  of  Treaties  dependent  on  the  Grant  of  further  Powers     .  287 

Incongruities  in  the  Grants  of  the  several  States    ....  288 

Failure  of  the  Attempt  to  negotiate  Commercial  Treaties   .         .  289 

Discordant  Legislation  of  the  States     .         .         .         .         .       '  .  290 

CHAPTER    V. 

1783-1787. 
The  Public  Lands.  —  Government   of   the   Northwestern  Terri- 
tory.—  Threatened  Loss  of  the  Western  Settlements. 
Relations  of  Congress  to  the  Public  Lands     .         .         .         .         .291 
Efforts  to  procure  Cessions  from  the  States         ....         293 

Cession  by  New  York 293 

Disposal  of  the  Territories        .......         293 

Power  of  Congress  to  acquire  and  hold  Lands        ....     293 

Its  Constitutional  Authority  to  deal  with  acquired  Territory        .         294 
Cession  of  Northwestern  Territory  by  Virginia      ....     295 

States  to  be  formed  from  this  Territory      .....         296 

Congress  pass  a  Resolve  for  the  Regulation  of  ceded  Territory        .     296 
Principles  on  wliich  the  Government  of  New   States  should  be  es- 
tablished          297 

Provision  for  admitting  New  States  into  the  Union  .  .  .  298 
Compact  between  the  Old  and  New  States  .....  299 
The  Public  Lands  the  true  Resources  for  the  Payment  of  the  Public 

Debt      .         .         • 299 

Slavery  to  be  excluded  from  the  New  States      ....         299 
Cession  by  Massachusetts  and  Connecticut  of  a  Portion  of  their  Ter- 
ritorial Claims 299,  300 

Modification  bv  Virtrinia  of  her  Act  of  Cession       ....     30C 


CONTENTS. 


XXIX 


Cession  of  Lands  by  South  Carolina 301 

No  other  Lands  ceded  to  the  United  States  before  1787  .  .  301 
Ordinance  for  the  Government  of  the  Northwestern  Territory  enacted  302 
Its  Provisions  concerning-  Property    ......         302 

Civil  Government  of  the  Territory 303 

Laws  to  be  adopted  .........         303 

Appointment  of  Civil  Officers        ...  ...     304 

Counties  and  Townships  to  be  formed         .....         304 

Representation  in  the  Legislature  provided  for       ....     304 

Articles  of  Compact  between  the  Original  States  and  the  People  and 
Stales  in  the  Territory    .......      305   306 

Wisdom  of  this  Scheme  of  Government      ....  306   307 

Political  Difficulties  in  the  Management  of  this  Territory  .  .  308 
Threatened  Loss  of  the  Western  Settlements     ...  309   310 

Washington's  Plan  of  uniting  the  Eastern  and  Western  States  .  310 
He  considers  the  Opening  of  the  Mississippi  not  important  .         31] 

The  Southern  Boundary  of  the   United   States,  by  the  Treaty  of 
Peace         ....... 

Secret  Article  in  that  Treaty 

Spain  refuses  to  concede  the  Navigation  of  the  Mississippi . 

Arrival  of  Guardoqui  as  Minister  from  Spain 

The  United  States  insist  on  the  Right  to  navigate  the  Mississippi 

The  Right  refused,  but  a  Commercial  Treaty  tendered  . 

Importance  of  this  Treaty 

The  States  divided  with  Regard  to  the  Mississippi 

Mr.  Jay  proposes  a  Middle  Course 

Treaty  to  be  limited  to  Twenty-five  Years 

Use  of  the  River  to  be  suspended  for  the  same  Period 

Change  in  Ml-.  Jay's  Instructions 

Seizure  of  American  Property  at  Natchez 

Inhabitants  of  the  Western  Settlements  alarmed     . 

Richness  of  their  Territory 

Their  Complaints  of  Congress 

Their  Resolves         ..... 

Retaliatory  Seizure  of  Spanish  Property 

The  Executive  of  Virginia  disavows  the  Act      . 

Guardoqui  adheres  to  his  Position  .... 

Committees  of  Correspondence  formed  in  the  West 

The  Inhabitants  of  Kentucky  in  Motion 

Remonstrances  of  Virginia  on  the  Subject  of  shutting  up  the  Mis- 

sissippi  ..... 
Their  Delegates  intercede  with  the  Spanish  Min'ster 


312 
312 
313 
313 
314 
314 
314 
314,  315 
315 
316 
316 
317 
318 
318 
319 
320 
321 
322 
322 
323 
323 
323 


323 
324 


XXX  CONTENTS. 

Their  Efforts  ineffet;tu;il 324 

The  Vote  of  Seven  Stales  attacked  in  Con<jress  .         .         .         325 

Unconstitutionality  of  that  Vote 325,  326 

It  is  not  rescinded     .........         326 

Critical  Position  of  the  Country 326 

The  Subject  of  the  Mississippi  postponed  to  await  the  Action  of  the 
Federal  Convention 326,  327 

CHAPTER    VI. 

1783-1787. 
Decay  and  Failure  of  the  Confederation.  —  Progress  of  Opinion. 
—  Steps   which   led  to    the  Convention  of  1787.  —  Influence 
and  Exertions  of  Hamilton. —  Meeting  of  the  Convention. 

The  Federal  Power  under  the  Confederation  unequal  to  the  Dis- 
charge of  its  Duties        ........     328 

The  Confederation  destitute  of  Political  Sovereignty  .         .         .         329 

Capacities  of  the  Country 330 

Difficulties  in  the  Formation  of  a  Federal  Constitution         .'        .         331 
Progress  of  Opinion  upon  the  Subject  of  a  General  Government  332,  333 
Important  Centres  of  Opinion    .......         334 

Action  of  Massachusetts       ........     334 

Distress  pervading  the  Commercial  Classes         .         .         .  334,  335 

Governor  Bowdoin's  Message       .......     336 

The  Legislature  recommend  a  General  Convention     .         .  336,  337 

Their  Delegates  in  Congress  refuse  to  present  the  Resolves  .  .     337 

Congress  desire  only  a  Temporary  Power  over  Commerce  .  .         337 

Jealousy  in  Congress  of  the  Changes  likely  to  be  made  in  the  Gov- 
ernment     ..........         338 

The  Legislature  of  Massachusetts  rescind  their  Resolutions    .         .     339 
Condition  of  Congress  in  1785  .......         339 

Action  of  Virginia        .........     340 

Proposed  Enlargement  of  the  Powers  of  Congress  over  Trade     .         340 
Difficulties  between  the  Citizens  of  Virginia  and  Maryland     .         .     341 
Meeting  at  Alexandria      .         .         .         .         .         .         .         .         341 

Report  of  the   Commissioners  of  Virginia   and  Maryland   to  their 
Governments  .........     342 

Virginia  invites  a  Meeting  of  Commissioners  from  all  the  States  at 
Annapolis  ..........         343 

Action  of  New  York 343 

Final  Appeal   by  Congress  for  the  Establishment  of  the   Revenue 
System  of  1783 344 


CONTENTS.  XXXI 

Exertions  of  Hamilton  ........     345 

The  Revenue  System  again  rejected  by  the  New  York  Legislature  346 
Commissioners  appointed  by  New  York  to   attend  the  Commercial 

Convention  .........         346 

Course  of  New  York  upon  the  Revenue  System     ....     346 

Five  States  only  represented  at  Annapolis  ....         347 

Hamilton's  Original  Plan,  and  its  Modification       .         .         .      347,348 
His  Report       ..........         348 

He  desires  an  entirely  New  System  of  Government        .         ;         .     349 
Caution  in  his  Proposal    ........         350 

His  extensive  Views    .........     350 

Reception  of  the  Recommendation  of  the  Annapolis  Commissioners 

in  Virginia  .........         351 

Objections  to  it  in  Congress  ......     352-355 

Report  of  the  Commissioners  taken  into  Consideration      .   .         .         355 
Opinions  of  different  Members  upon  the  Subject     ....     355 

Legal  Difficulties  in  the  Way  of  a  Convention    ....         356 

Views  entertained  in  Congress      .......     357 

Critical  State  of  the  Country    ......  357.358 

It  impels  Congress  to  Action         .......     358 

Influence  of  the  Course  of  New  York  upon  Congress  .  358,  35'J 

Their  Delegation  instructed  to  move  a  Convention  .         .         .     360 

Failure  of  this  Proposition         .......         360 

Adoption  of  a  Resolve  proposed  by  the  Massachusetts  Members  for 

the  same  Purpose        ........         361 

Mode  of  Amendment  recommended  by  Congress    ....     362 

Importance  of  this  Action  of  Congress        .....         362 

Dangers  of  Inaction 363 

Importance  of  the  Sanction  of  the  Old  Government,  in  the  Formation 

of  a  new  one  ..........     364 

Hamilton's  Wisdom  ........         365 

Reason  for  not  intrusting  the  Revision  of  the  System  of  Government 

to  Congress 365,  366 

Powers  of  the  Convention  not  defined  by  Congress  .         .         .     367 

Nature  of  the  Crisis  ........         368 

Danger  of  an  Attempt  to  establish  Monarchical  Government    .         .     369 
Washington's  Opinions     .......  370,  371 

Other  Difficulties  attending  the  Revision  of  the  Federal  System      .     371 
Sectional  Jealousy  and  its  Causes      .....  371,372 

New  Idea  of  a  Union  .......      372,373 

Prevailing  Feeling  among  Statesmen  concerning  the  Convention  373 

Hamilton  fully  equal  to  the  Demands  of  the  Crisis  .         .      373,  S74 


XXXU  CONTENTS. 

Assembling  of  the  Convention 374 

Novelty  of  their  Undertaking 374,375 

State  of  Political  Science  in  Modern  Europe  ....     375 

The  Results  of  English  Liberty 376,377 

French  Discussions      ........      377,  378 

The  English  Constitution  an  imperfect  Guide    ....         378 

Nature  of  the  Problem 379 

CHAPTER    YII. 

The  Framers  of  the  Constitution.  —  Washington,    President   op 
THE  Convention. 

Embarrassments  attending  the  Assembling  of  the  Convention  .  380 
Discipline  to  which  the  American  People  had  been  subjected  381,  382 
The  Constitution  the  Result  of  Circumstances  .         .  .     382 

Consequences  of  a  Want  of  Power  in  the  P'irst  Government  .  383 
Its  Incapacity      ..........     384 

Suiferings  of  the  People 384 

Civil  Liberty  the  Result  of  Trial  and  Suffering  .  .  .  385,386 
Qualities  of  the  Framers  of  the  Constitution        .         .         .         386,387 

Hamilton 387 

Washington     ..........         388 

Madison 388 

Franklin '        .         388 

Gouverneur  Morris      .........     388 

Their  Characters  formed  during  the  Revolution  .         .  388,  389 

Diversities  of  Opinion  in  such  an  Assembly  .....     389 

Patriotism  of  its  Members         .......         390 

A  Republican  System  their  great  Object        .         .         •         .         .     390 
Slight  A^alue  of  the  Examples  of  other  Countries        .         .         .         391 
Necessity  for  a  National  Head      .......     392 

The  New  Government  established  without  Violence  .         .         .         393 

Washington  at  Mount  Vernon 393,  394 

His  Opinions  upon  the  Powers  of  the  Federal  Government  394  -396 

His  Fears  as  to  the  Result  of  a  Convention    ....      396,  397 

The  Legislature  of  Virginia  desire  to  place  him  at  the  Head  of  their 
Delegation     ..........     397 

Refuses  informally   .........         398 

Declines  a  Re-election  as  President  of  the  Society  of  the  Cincinnati     398 
Receives  Official  Notice  of  his  Appointment  to  the  Convention    .         399 
Declines  the  Appointment    ........     399 

The  Insurrection  in  Massachusetts  changes  his  Determination       399,  400 


CONTENTS. 


XXXlll 


He  leaves  Mount  Vernon  for  Philadelphia 401 

Is  elected  President  of  tiie  Convention        .....  401 

His  great  Object,  to  secure  a  Republican  Government    .         .         .  402 

The  Idea  of  a  Monarchical  Government  entertained  to  some  Extent  402 

Coercive  Power  necessary  in  the  General  Government    .         .         .  403 

Washington's  Character  as  a  Statesman    .....  404 

His  Fitness  for  the  Chair  of  the  Convention 405 


CHAPTER    Vlil. 

Hamilton. 

Causes  why  Hamilton  is  less  known  at  the  present  Day,  than 

Statesmen  of  the  Revolution   . 
Immediate  Effect  of  his  Death  upon  the  Country 
His  Birth  and  Education      .... 
Very  early  Entrance  upon  Political  Life    . 
His  Essays  on  the  Rights  of  the  Colonies 
Appointed  Aide-de-Camp  to  Washington  . 
Elected  to  Congress  from  New  York    . 
A  Member  of  the  Legislature   .... 
Delegate  to  the  Federal  Convention 
One  of  the  Authors  of  the  Federalist 
Elected  to  the  State  Convention  . 
Secretary  of  the  Treasury         .... 
Retirement  .         .         •  00  • 

Command  of  the  Provisional  Army    . 
Practice  of  the  Law     ..... 

Death 

Character   ....... 


other 
.     406 

407 
.     408 

408 
.     408 

409 
.     409 

409 
.     409 

409 
.     409 

409 
.     409 

409 

.     409 

409,  410 

410-419 


CHAPTER    IX. 

]\Iadison. 

His  Birth  and  Education      ........     420 

Entrance  into  Congress    ...         .....         421 

His  Influence  in  inducing  Virginia  to  yield  the  Northwest  Territory    422 
Other  important  Services  in  the  Congress  of  the  Confederation    422,  423 
Retires  to  Virginia  .........         423 

Efforts  for  the  Enlargement  of  Commercial  Powers        .         .      423,424 
His  Connection  with  the  Events  which  led  to  the  Convention     424  -  427 
Appointed  one  of  the  Commissioners  to  Annapolis         .         .         .     427 
VOL.  I.  e 


XXXIV  CONTENTS. 

Drafts  the  Act  of  Virginia  appointing  Delegates  to  the  Federal  Con- 
vention .         .         . 427 

His  Labors  in  the  Convention   ......         427,  428 

Records  the  Debates 428 

His  Character 428-431 

CHAPTER    X. 

Franklin. 

His  long  Career  of  Public  Service         .....     433,  434 

His  distinguished  Residences  abroad  ....         434,  435 

Importance  and  Influence  of  his  Presence  in  the  Convention    .     435-437 
His  Objections  to  the  Constitution     .         .         .         .         .         .         437 

Sacrifices  them  to  the  Public  Good        ......     437 

His  Efforts  to  produce  Unanimity      ...         .         .         437,  438 

CHAPTER    XI. 

GOUVERNEUR    MORRIS. 

Birth  and  Education    .         .         . 440 

Views  on  the  Independence  of  America     .....        441 

Services  in  Congress   .........     442 

Appointed  Assistant  Financier  ......         443 

Elected  to  the  Federal  Convention 444 

His  Character .         444-447 

CHAPTER    XII. 

King. 

Birth  and  Education    .........     448 

Elected  to  Congress  ........        448 

His  Opinions  on  the  Subject  of  a  Federal  Convention     .         .         .     449 
His  Views  of  the  Insurrection  in  Massachusetts  .         .         .        450 

Disappointment  concerting  the  Powers  of  the  Confederation  .         .     450 
Change  of  Opinion  ....  ...  450,451 

View  of  the  true  Principle  for  the  new  Government       .         .         .     451 
Introduces  the  Prohibition  aj^ainst  Laws  affecting  the  Obligation  of 
Contracts       ..........     452 

His  Character  .........         453 


CONTENTS.  XXXV 

CHAPTER    XIII, 

Charles  Cotesvvorth  Pinckney 

Descent  and  Education 454 

Military  Career .         .        454 

Appointed  to  the  Federal  Convention 455 

His  Course  on  the  Slave-Trade,  and  the  Regulation  of  Commerce  456 
Vindication  of  the  Framers  of  the  Constitution  .  ,  .  456-460 
Note  on  the  Abolition  of  the  Slave-Trade  ....         460 

CHAPTER    XIV. 

Wilson. 

Hirth  and  Education 462 

Emigration  to  America    .         . 462 

Services  in  Congress 462   463 

His  Opinions  in  the  Convention 463,  464 

Exertions  for  a  Representative  Government 464 

Appointed  Judge  of  the  Supreme  Court  of  the  United  States       .         465 
His  Speech  on  the  Constitution  in  the  Pennsylvania  Convention  465-479 

CHAPTERXV. 

Randolph. 

An  Aide-de-camp  to  Washington  ......     480 

Services  in  Congress         ........         480 

Elected  Governor  of  Virginia       .......     48I 

Procures  the  Attendance  of  Washington 481 

His  Opinions  on  the  Constitution,  and  the  existing  Crisis       .     481-485 
Genealogy       .         .         .         , 485 

CHAPTER    XVI. 

Conclusion  of  the  Present  Volume. 

The  Other  Members  of  the  Convention  ....     486   487 

Responsible  Position  of  the  American  People  .         487,  488 


XXXVl  CONTENTS 


APPENDIX. 

Circular  Letter  of  Congress  recommending  the  Articles  of  Con- 
federation       491 

Representation  of  New  Jersey  on  the  Articles  of  Confederation  493 

Act  of  New  Jersey  accepting  the  Confederation     ....     497 

Resolutions  passed  by  the  Council  of  Delaware  respecting  the  Arti- 
cles of  Confederation       ........     498 

Act  to  authorize  the  Delegates  of  the  Delaware  State  to  ratify  the 
Articles  of  Confederation        .......     500 

Instructions  of  the  General  Assembly  of  Maryland  to  their  Dele-  > 
gates,  respecting  the  Articles  of  Confederation  .         .         .501 

Act  of  the  Legislature  of  New  York,  to  facilitate  the  Completion 
of  the  Articles  of  Confederation  and  Perpetual  Union  among  the 
United  States  of  America        .  .....     505 

Report  of  the  Committee  of  Congress  as  to  the  Proceedings  of  the 
Legislatures  of  Maryland,  New  York,  and  Virginia  in  Relation 
to  the  Articles  of  Confederation         .  .  .         .     506 

A.ct  to  empower  the  Delegates  of  Maryland  to  ratify  the  Articles  o  * 
Confederation .         .  508 

Articles  of  Confederation  and  Perpetual  Union  between  the  States       509 

Members  of  the  Convention  which  formed  the  Constitution     .         .     5 16 


BOOK   I. 


THE  CONSTITUTIONAL  HISTORY  OF  THE  UNITED 
STATES,  FROM  THE  COMMENCEMENT  OF  THE 
REVOLUTION  TO  THE  ADOPTION  OF  THE  ARTI 
CLES    OF    CONFEDERATION. 


VOL.    I. 


CHAPTER  1. 

1774-1775. 

Organization  of  the   First   Continental   Congress. -  —  Origin 
OF  THE   Union. 

The  thirteen  British  colonies  in  North  America, 
by  whose  inhabitants  the  American  Revolution  was 
achieved,  were,  at  the  commencement  of  that  strug- 
gle, so  many  separate  communities,  having,  to  a  con- 
siderable extent,  different  political  organizations  and 
different  municipal  laws:  but  their  various  j)opula- 
tions  spoke  almost  universally  the  English  language 
These  colonies  were  Virginia,  Massachusetts,  New 
Hampshire,  Connecticut,  Rhode  Island,  Maryland, 
New  York,  New  Jersey,  Pennsylvania,  Delaware," 
North  Carolma,  South  Carolina,  and  Georgia.  From 
the  times  when  they  were  respectively  settled,  until 
the  union  formed  under  the  necessities  of  a  common 
cause  at  the  breaking  out  of  the  Revolution,  they 
had  no  political  connection ;  but  each  possessed  a 
domestic  government  peculiar  to  itself,  derived  di- 
rectly from  the  crown  of  England,  and  more  or  less 
under  the  direct  control  of  the  mother  country. 

The  political  organizations  of  the  colonies  have 
been    classed   by  jurists   and   historians    under   the 


4  THE  FEDERAL  CONSTITUTION.  [Book  I. 

three  heads  of  Provincial,  Proprietary,  and  Charter 
governments. 

To  the  class  of  Provincial  governments  belonged 
the  Provinces  of  New  Hampshire,  New  Jersey, 
Virginia,  the  two  Carolinas,  and  Georgia.  These 
had  no  other  written  constitutions,  or  fundamental 
laws,  than  the  commissions  issued  to  the  Governors 
appointed  by  the  cro-\vn,  explamed  by  the  instruc- 
tions which  accompanied  them.  The  Governor,  by 
his  commission,  was  made  the  representative  oi 
deputy  of  the  King,  and  was  obliged  to  act  in 
conformity  with  the  royal  instructions.  He  was 
assisted  by  a  Council,  the  members  of  which,  besides 
participatmg  with  him,  to  a  certain  extent,  in  the 
executive  functions  of  the  government,  constituted 
the  upper  house  of  the  provincial  legislature;  and 
he  was  also  authorized  to  summon  a  general  as- 
sembly of  representatives  of  the  freeholders  of  the 
Province.  The  three  branches  thus  convened,  con- 
sisting of  the  Governor,  the  Council,  and  the  Repre- 
sentatives, constituted  the  provincial  Assemblies,  hav- 
ing the  power  of  local  legislation,  subject  to  the  rati- 
fication and  disapproval  of  the  cro^\ii.  The  dhect 
control  of  the  crown  over  these  provincial  govern- 
ments may  also  be  traced  in  the  features,  common 
,to  them  all,  by  which  the  Governor  had  power  to 
suspend  the  members  of  the  Council  from  office,  and, 
whenever  vacancies  occurred,  to  appoint  to  those 
vacancies,  until  the  pleasure  of  the  crown  should  be 
known  ;  to  negative  all  the  proceedings  of  the  assem- 
bly ;  and  to  prorogue  or  dissolve  it  at  his  pleasure. 


Cn.  I.]  FIEST   CONTINENTAL    CONGRESS.  5 

The  Proprietaiy  governments,  consisting  of  Mary- 
land, Pennsylvania,  and  Delaware,  were  those  in 
which  the  subordinate  powers  of  legislation  and  gov- 
ernment had  been  granted  to  certain  individuals 
called  the  proprietaries,  who  appomted  the  Governor 
and  authorized  him  to  summon  legislative  assemblies. 
The  authority  of  the  proprietaries,  or  of  the  legis- 
lative bodies  assembled  by  the  Governor,  was  re- 
stramed  by  the  condition,  that  the  ends  for  which 
the  grant  was  made  to  them  by  the  croA\^i  should  be 
substantially  pursued  in  their  legislation,  and  that 
nothing  should  be  done,  or  attempted,  which  might 
derogate  from  the  sovereignty  of  the  mother  country. 
In  ^Maryland,  the  laws  enacted  by  the  proprietary 
government  were  not  subject  to  the  direct  control  of 
the  croAv^i ;  but  m  Pennsylvania  and  Delaware  they 
were.^ 

The  Charter  governments,  consistmg,  at  the  period 
of  the  Revolution,  of  Massachusetts,  Phode  Island, 
and  Connecticut,  may  be  said,  in  a  stricter  sense,  to 
have  possessed  written  constitutions  for  their  general 
political  government.  The  charters,  granted  by  the 
croAvn,  established  an  organization  of  the  different 
departments  of  government  smiilar  to  that  in  the 
provincial  governments.  In  Massachusetts,  after  the 
charter  of  William  and  Maiy  granted  in  1691,  the 
Governor  was  appointed  by  the  crovvii ;  the  Council 
were  chosen  annually  by  the  General  Assembly,  and 
the  House  of  Representatives   by  the  people.      In 

1   1  Story's  CommenUiries  on  the  Constitution,  ^  160. 


6  THE  FEDEEAL  CONSTITUTION.  [Book  I, 

Connecticut  and  Rhode  Island,  the  Governor,  Coim- 
cil,  and  Representatives  were  chosen  annually  by  the 
freemen  of  the  colony.  In  the  charter,  as  well  as 
the  provincial  governments,  the  general  power  of 
legislation  was  restrained  by  the  condition,  that  the 
laws  enacted  should  be,  as  nearly  as  possible,  agree- 
able to  the  laws  and  statutes  of  England. 

One  of  the  prmcipal  causes  which  precipitated 
the  Avar  of  the  Revolution  was  the  blow  struck  by 
Parliament  at  these  charter  goA^ernments,  commen- 
cing with  that  of  IMassachusetts,  by  an  act  intended 
to  alter  the  constitution  of  that  Province  as  it  stood 
upon  the  charter  of  William  and  Mary ;  a  precedent 
which  justly  alarmed  the  entire  continent,  and  in  its 
prmciple  affected  all  the  colonies,  since  it  assumed 
that  none  of  them  possessed  constitutional  rights 
which  could  not  be  altered  or  taken  away  by  an  act 
of  Parliament.  The  "  Act  for  the  better  regulating 
the  government  of  the  Province  of  Massachusetts 
Bay,"  passed  in  1774,  was  designed  to  create  an 
executive  power  of  a  totally  diiferent  character  from 
that  created  by  the  charter,  and  also  to  remodel  the 
judiciaiy,  in  order  that  the  laws  of  the  imperial  gov- 
ernment might  be  more  certainly  enforced. 

The  charter  had  reserved  to  the  King  the  appoint- 
ment of  the  Governor,  Lieutenant-Governor,  and 
Secretary  of  the  Province.  It  vested  in  the  General 
Assembly  the  choice  of  twenty-eight  coinicillors, 
subject  to  rejection  by  the  Governor ;  it  gave  to  the 
Governor,  with  the  advice  and  consent  of  the  Coun- 
cil,  the   appointment   of    all   military    and  judicial 


Ch.  I.]  FIRST   CONTINENTAL  CONGRESS.  7 

officers,  and  to  the  two  houses  of  the  legislatui'e  the 
appomtment  of  all  other  civil  officers,  with  a  light 
of  negative  by  the  Governor.  The  new  law  vested 
the  appomtment  of  councillors,  judges,  and  magis- 
trates of  all  Idnds,  in  the  croAvn,  and  in  some  cases 
m  the  Governor,  and  made  them  all  removable  at 
the  pleasure  of  the  crown.  A  change  so  radical  as 
this,  in  the  constitution  of  a  people  long  accustomed 
to  regard  their  charter  as  a  compact  between  them- 
selves and  the  croAvn,  could  not  but  lead  to  the  most 
serious  consequences. 


,e  statements  wliich  have  now  been  made  are 
sufficient  to  remind  the  reader  of  the  important  fact, 
that,  at  the  commencement  of  the  Kevolution,  there 
existed,  and  had  long  existed,  in  all  the  colonies, 
local  legislatm'es,  one  branch  of  wliich  was  composed 
of  representatives  chosen  directly  by  the  people, 
accustomed  to  the  transaction  of  public  business, 
and  being  in  fact  the  real  organs  of  the  popular 
will.  These  bodies,  by  vii'tue  of  their  relation  to 
the  people,  were,  in  many  instances,  the  bodies 
which  took  the  initiatory  steps  for  the  organiza- 
tion of  the  first  national  or  Continental  Congress, 
when  it  became  necessary  for  the  colonies  to  unite  in 
the  common  purpose  of  resistance  to  the  mother 
country.  But  it  should  be  agaui  stated,  before  we 
attend  to  the  steps  thus  taken,  that  the  colonies  had 
no  direct  political  connection  with  each  other  before 
the  Revolution  commenced,  but  that  each  was  a  dis- 
tinct community,  with  its  o"\vn  separate  political  or- 


8 


THE  FEDERAL  CONSTITUTION. 


[Book  I. 


ganization,  and  without  any  power  of  legislation  for 
any  but  its  o^vn  inhabitants ;  that,  as  political  com- 
munities, and  upon  the  principles  of  their  organiza- 
tions, they  possessed  no  power  of  forming  any 
union  among  themselves,  for  any  purpose  what- 
ever, without  the  sanction  of  the  Crown  or  Parlia- 
ment of  England.-^  But  the.  free  and  independent 
power  of  formmg  a  union  among  themselves,  for 
objects  and  purposes  common  to  them  all,  which 
was  denied  to  their  colonial  condition  by  the  princi- 
ples of  the  English  Constitution,  was  one  of  the 
chief  powers  asserted  and  developed  by  the  Revolu- 
tion; and  they  were  enabled  to  effect  this  union, 
as  a  revolutionary  right  and  measure,  by  the  fortu- 


1  That  a  union  of  the  colonies 
into  one  general  government,  for 
any  purpose,  could  not  take  place 
without  the  sanction  of  Parliament, 
was  always  assumed  in  both  coun- 
tries. The  sole  instance  in  which 
a  plan  of  union  was  publicly  pro- 
posed and  acted  upon,  before  the 
Revolution,  was  in  1753-4,  when 
the  Board  of  Trade  sent  instruc- 
tions to  the  Governor  of  New  York 
to  make  a  treaty  with  the  Six 
Nations  of  Indians  ;  and  the  other 
colonies  were  also  instructed  to 
send  commissioners  to  bo  present 
at  the  meeting,  so  that  all  the 
provinces  might  be  comprised  in 
one  general  treaty,  to  be  made  in 
the  King's  name.  It  was  also  rec- 
ommended by  the  home  govern- 
ment, that  the  commissioners  at 
this   meeting  should    form  a  plan 


of  union  among  the  colonies  for 
their  mutual  protection  and  defence 
against  the  French.  Twenty-five 
commissioners  assembled  at  Al- 
bany in  May,  1754,  from  New 
Hampshire,  Massachusetts,  Rhode 
Island,  Connecticut,  New  York, 
Pennsylvania,  and  Maryland.  In 
this  body,  a  plan  of  union  was  di- 
gested and  adopted,  which  was 
chiefly  the  work  of  Dr.  Franklin. 
It  was  agreed  that  an  act  of  Par- 
liament was  necessary  to  authorize 
it  to  be  carried  into  effect.  It  was 
rejected  by  all  the  colonial  Assem- 
blies before  which  it  was  brought, 
and  in  England  it  was  not  thought 
proper  by  the  Board  of  Trade  to 
recommend  it  to  the  King.  In 
America  it  was  considered  to  have 
too  much  of  frcrogntivc  in  it,  and 
in  Entrland  to  he  ioo  davocradc.    It 


Ch.  I.] 


FIRST   CONTINENTAL  CONGRESS. 


nate  circumstances  of  their  origin,  which  made  the 
people  of  the  different  colonies,  in  several  important 
senses,  one  people.  They  were,  in  the  first  place, 
chiefly  the  descendants  of  Englishmen,  governed 
by  the  laws,  mheriting  the  blood,  and  speaking  the 
language  of  the  people  of  England.  As  British  sub- 
jects, they  had  enjoyed  the  right  of  dwelling  in  any 
of  the  colonies,  without  restraint,  and  of  carrjdng  on 
trade  from  one  colony  to  another,  under  the  regida- 
tion  of  the  general  laws  of  the  empii-e,  without  re- 
striction by  colonial  legislation.  They  had,  more- 
over, common  grievances  to  be  redressed,  and  a  com 
mon  independence  to  establish,  if  redress  could  not 
be  obtained :  for  although  the  precise  grounds  of  dis- 
pute with  the  Cro^vn  or  the  ParHament  of  England 


was  a  comprehensive  scheme  of 
government,  to  consist  of  a  Gov- 
ernor-General, or  President-Gen- 
eral, who  was  to  be  appointed  and 
supported  by  the  crown,  and  a 
Grand  Council,  which  was  to  con- 
sist of  one  member  chosen  by  each 
of  the  smaller  colonies,  and  two  or 
more  by  each  of  the  larger.  Its 
duties  and  powers  related  chiefly 
to  defence  against  external  attacks. 
It  was  to  have  a  general  treasury, 
to  be  supplied  by  an  excise  on  cer- 
tain articles  of  consumption.  See 
the  history  and  details  of  the 
scheme,  in  Sparks's  Life  and 
Works  of  Franklin,  I.  17G,  III. 
22-55;  Hutchinson's  History  of 
Massachusetts,  III.  23  ;  Trumbull's 
History  of  Connecticut,  II.  355  ; 
Pitkin's    History    of    the    United 

VOL     I.  7 


States,  I.  140-146.  In  1788, 
Franklin  said  of  it :  "  The  different 
and  contradictory  reasons  of  dislike 
to  my  plan  make  me  suspect  that 
it  was  really  the  true  medium  ;  and 
I  am  still  of  opinion  it  would  have 
been  happy  for  both  sides,  if  it  had 
been  adopted.  The  colonies  so 
united  would  have  been  sufficiently 
strong  to  have  defended  themselves  : 
there  would  have  been  no  need  of 
troops  from  England  :  of  course 
the  subsequent  pretext  for  taxing 
America,  and  the  bloody  contest 
it  occasioned,  would  have  been 
avoided.  But  such  mistakes  are 
not  new :  history  is  full  of  the 
errors  of  states  and  princes." 
(Life,  by  Sparks,  I.  178.)  We 
may  not  join  in  his  re^ireis  now. 


10  THE  FEDERAL  CONSTITUTION.  [Book  I 

had  not  always  been  the  same  in  all  the  colonies,  yet 
when  the  Revolution  actually  broke  out,  they  all 
stood  in  the  same  attitude  of  resistance  to  the  same 
oppressor,  maldng  common  cause  with  each  other, 
and  resting  upon  certain  great  principles  of  liberty, 
which  had  been  violated  vvdth  regard  to  many  of 
them,  and  mth  the  further  violation  of  which  all 
were  threatened. 

It  was  while  the  controversies  between  the  mothei 
countiy  and  the  colonies  were  dra^ving  towards  a 
crisis,  that  Dr.  Franldm,  then  in  England  as  the 
political  agent  of  Pennsylvania,  of  Massachusetts, 
and  of  Georgia,  in  an  official  letter  to  the  Massa- 
chusetts Assembly,  dated  July  7th,  1773,  recom- 
mended the  assembling  of  a  general  congress  of  all 
the  colonies.  "  As  the  strength  of  an  empke,"  said 
he,  "depends  not  only  on  the  union  of  its  parts, 
but  on  their  readiness  for  united  exertion  of  their 
common  force ;  and  as  the  discussion  of  rights  may 
seem  unseasonable  in  the  commencement  of  actual 
war,  and  the  delay  it  might  occasion  be  prejudicial 
to  the  common  welfare ;  as  likewise  the  refusal  of 
one  or  a  few  colonies  would .  not  be  so  much  re- 
garded, if  the  others  granted  liberally,  which  per- 
haps by  various  artifices  and  motives  they  might  be 
prevailed  on  to  do;  and  as  this  want  of  concert 
would  defeat  the  expectation  of  general  redress,  that 
might  otherwise  be  justly  formed ;  perhaps  it  would 
be  best  and  fairest  for  the  colonies,  in  a  general 
congress  now  in  peace  to  be  assembled,  or  by  means 


C'l.  I.]  FIRST   CONTINENTAL    CONGRESS.  11 

of  the  correspondence  lately  proposed,  after  a  full 
and  solemn  assertion  and  declaration  of  their  rights, 
to  engage  firmly  with  each  other,  that  they  will 
never  grant  aids  to  the  cro"\\Tii  m  any  general  war, 
till  those  rights  are  recognized  by  the  King  and  both 
houses  of  Parliament ;  communicating  at  the  same 
time  to  the  cro^m  this  their  resolutioiL  Such  a  step 
I  imagme  will  bring  the  dispute  to  a  crisis."  -"^ 

The  first  actual  step  towards  this  measure  was 
taken  in  Virgmia.  A  new  House  of  Biu'gesses 
had  been  summoned  by  the  royal  Governor  to 
meet  in  May,  1774.  Soon  after  the  members 
had  assembled  at  Williamsburg,  they  received  the 
news  that,  by  an  act  of  Parliament,  the  port  of 
Boston  •^vas  to  be  closed  on  the  first  day  of  the 
succeeding  Jime,  and  that  other  disabilities  were 
to  be  mflicted  on  the  toMai.  They  immediately 
passed  an  order,  setting  apart  the  first  day  of  Jime 
as  a  day  of  fastmg,  hmniliation,  and  prayer,  "to 
implore  the  Di\iiie  interposition  for  avertmg  the 
hea\7-  calamity  which  threatened  destruction  to  their 

1  It  is  not  certain  by  whom  the  of  Burgesses.  But  Mr.  Sparks 
first  suggestion  of  a  Continental  thinks  that  no  other  direct  and  pub- 
Congress  was  made.  Thomas  lie  recommendation  of  the  meas- 
Cushing,  Speaker  of  the  Massa-  ure  can  be  found  before  the  date 
chusetts  Assembly,  and  a  corre-  of  Franklin's  letter  to  the  Mas- 
spondent  of  Dr.  Franklin,  appears  sachusetts  Assembly.  Sparks'a 
to  have  expressed  to  him  the  opin-  Life  of  Franklin,  I.  350,  note.  In 
ion,  previously  to  the  date  of  the  early  part  of  the  year  1774,  the 
Franklin's  official  letter  quoted  in  necessity  of  such  a  congress  began 
the  text,  that  a  congress  would  to  be  popularly  felt  throughout  all 
grow  out  of  the  committees  of  cor-  the  colonies.  Sparks's  Washing- 
respondence  which  had  been  rec-  ton,  II.  326 
onimended  b"  tl^e  Virginia  Hous^ 


12  THE  FEDERAL  CONSTITUTION.  [Book  I. 

chil  rights,  and  the  evils  of  ci^dl  war,  and  to  give 
them  one  heart  and  one  mind  fimily  to  oppose,  by 
all  just  and  proper  means,  every  injury  to  Amer- 
ican rights."  Thereupon,  the  Governor  dissolved 
the  House.  But  the  members  immediately  assem- 
bled at  another  place  of  meeting,  and,  ha^dng  organ- 
ized themselves  as  a  committee,  drew  up  and  sub- 
scribed an  Association,  m  which  they  declared  that 
the  mterests  of  all  the  colonies  were  equally  con- 
cerned in  the  late  doings  of  Parliament,  and  ad^ised 
the  local  Committee  of  Correspondence  to  consult 
with  the  committees  of  the  other  colonies  on  the 
expediency  of  holduig  a  general  Continental  Con- 
gress. Pursuant  to  these  recommendations,  a  popu- 
lar convention  was  liolden  at  Williamsburg?  on  the 
1st  of  August,  which  appointed  seven  persons  as 
delegates  to  represent  the  people  of  Virginia  ui  a 
general  Congress  to  be  held  at  Philadelphia  in  the 
September  following.^ 

The  Massachusetts  Assembly  met  on  the  last  of 
May,  and,  after  negativmg  thirteen  of  the  Council- 
lors, Governor  Gage  adjourned  the  Assembly  to  meet 
at  Salem  on  the  7  th  of  June.  "\Vlien  they  came 
together  at  that  place,  the  House  of  Eepresentatives 
passed  a  resolve,  declaring  a  meeting  of  committees 
from  the  several  colonies  on  the  continent  to  be 
highly  expedient  and  necessary,  to  deliberate  and 
determine  upon  proper  measures  to  be  recommended 

1  These  delegates  were  Peyton       ry,  Ricliard  JMand,  Tienjaaiii'  Har 
Randolph,    Richard    Henry    Lee,      rison,  and  Kdnnuid  Poiidlt'ton. 
George  Washington,  Patrick  Hen- 


Ch.  I-i  FIRST   CONTINENTAL   CONGRESS.  13 

to  all  the  colonies  for  the  recovery  and  establishment 
of  their  just  rights  and  liberties,  civil  and  religious, 
and  for  the  restoration  of  union  and  harmony  with 
Great  Britain.  They  then  appomted  five  delegates^ 
to  meet  the  representatives  of  the  other  colonies  in 
congress  at  Philadelphia,  in  the  succeeding  Sep- 
tember. 

These  examples  were  at  once  followed  by  the  other 
colonies.  In  some  of  them,  the  delegates  to  the  Con- 
tinental Congress  were  appomted  by  the  popular 
branch  of  the  legislature,  actmg  for  and  in  behalf 
of  the  people;  in  others,  they  were  appointed  by 
conventions  of  the  people  called  for  the  express  pur- 
pose, or  by  committees  duly  authorized  to  make  the 
appointment.^  The  Congress,  styHng  themselves 
"  the  delegates  appointed  by  the  good  people  of 
these  colonics,"  assembled  at  Philadelphia  on  the 
5th  of  September,  1774,  and  organized  themselves 
as  a  deliberative  body  by  the  choice  of  officers  and 
the  adoption  of  rules  of  proceeding.     Peyton  Ran- 


^  Thomas  Gushing,  Samuel  Ad-  for  the  Colony,   acting  under  au- 

ams,   Robert  Treat  Paine,  James  thority  conferred  by  the  House  of 

Bowdoin,  and  John  Adams.  Representatives.      In   New  York, 

2  The  delegates  in  the  Congress  the  mode  of  appointment  was  vari- 

of  1774  from  New  Hampshire  were  ous.      In  the  city  and  county  of 

appointed  by  a  Convention  of  Dep-  New   York,    the    delegates   were 

uties  chosen  by  the  towns,  and  re-  elected   by  popular  vote  taken  in 

ceived  their  credentials  from  that  seven  wards.      Tlie  same  persons 

Convention.    In  Rhode  Island,  they  were  also  appointed  to  act  for  the 

were  appointed  by  the  General  As-  counties  of  West  Chester,  Albany, 

sembly,  and  commissioned  by  the  and    Duchess,   by   the    respective 

Governor.      In    Connecticut,   they  committees  of  those  counties  ;  and 

were  appointed  and  instructed   by  another   person   was  appointed   in 

the  Committee  of  Correspondence  the  same  manner  for  the  county  of 


14  THE  FEDERAL  CONSTITUTION  [Book  I. 

dolpli  of  Virginia  was  elected  President,  and  Charles 
Thompson  of  Pennsylvania  Secretary  of  the  Congress. 
No  precedent  existed  for  the  mode  of  action  to  be 
adopted  by  this  assembly.  There  was,  therefore,  at 
the  ontset,  no  established  principle  which  might 
determme  the  natnre  of  the  union  ;  but  that  union 
was  to  be  shaped  by  the  new  circumstances  and 
relations  in  which  the  Congress  found  itself  placed. 
There  had  been  no  general  concert  among  the  dif- 
ferent colonies  as  to  the  numbers  of  delegates,  or,  as 
they  were  called  in  many  of  the  proceedings,  "  com- 
mittees "  of  the  colonies,  to  be  sent  to  the  meeting  at 
Pliiladelphia.  On  the  first  day  of  their  assembling, 
Pennsylvania  and  Vii'ginia  had  each  six  delegates 
in  attendance ;  New  York  had  five ;  Massachusetts, 
New  Jersey,  and  South  Carolina  had  four  each; 
Connecticut  had  three ;  New  Hampsliu-e,  Phode 
Island,  Delaware,  and  Maryland  had  two  each. 
The  delegates  from  North  Carolina  did  not  arrive 
until  the  Uth} 


Suffolk.      The    New   York  dele-  were  elected   by  a  convention  of 

gates    received  no   other   instruc-  the   freemen  assembled  in  pursu- 

tions  than    those    implied   in  the  ance  of  circular  letters  from  the 

certificates,  "  to   attend   the   Con-  Speaker  of  the  House  of  Assem- 

gress  and  to  represent "  the  county  bly.      In    Maryland,   the   appoint- 

dcsignated.      In  New  Jersey,  the  ment   was   by   committees   of  the 

delegates   were    appointed   by  the  counties.     In  Virginia,  it  was  by 

committees  of  counties,  and  were  a  popular  convention  of  the  whole 

simply  instructed  "to  represent"  Colony.     In  South  Carolina,  it  was 

the  Colony.    In  Pennsylvania,  they  by  the  House  of  Commons.     Geor- 

were  appointed  and  instructed  by  gia  was   not  represented   in   thi? 

the  House  of  Assembly.      In  the  Congress, 
counties  of  New  Castle,  Kent,  and  ^  Journals,  I.  1,  12 

.Sussex    on    Delaware,    delegates 


:!h.  I-l  FIRST   CONTINENTAL    CONGRESS.  15 

As  soon  as  the  choice  of  officers  had  taken  place,^ 
the  method  of  votmg  presented  itself  as  the  first 
thing  to  be  determined;  and  the  difficulties  arising 
from  the  inequalities  between  the  colonies  in  respect 
to  actual  representation,  population,  and  wealth,  had 
to  be  encountered  upon  the  threshold.  Insuperable 
obstacles  stood  in  the  way  of  the  adoption  of  inter- 
ests as  the  basis  of  votes.  The  weight  of  a  colony 
could  not  be  ascertained  by  the  numbers  of  its  inhab- 
itants, the  amount  of  their  wealth,  the  extent  of  their 
trade,  or  by  any  ratio  to  be  compomided  of  all 
these  elements,  for  no  authentic  evidence  existed 
from  which  data  could  be  taken.^  As  it  was  appar- 
ent, however,  that  some  colonies  had  a  larger  pro- 
portion of  members  present  than  others,  relatively 
to  theii'  size  and  importance,  it  was  thought  to  be 
equally  objectionable  to  adopt  the  method  of  Voting 
by  polls.  In  these  circumstances,  the  opinion  was 
advanced,  that  the  colonial  governments  were  at  an 
end;  that  all  America  was  thro-wn  into  one  mass, 
and  was  in  a  state  of  nature ;  and  consequently,  that 
the  people  ought  to  be  considered  as  represented  in 
the  Congress  according  to  their  niunbers,  by  the  dele- 
gations actually  present.^  Upon  this  principle,  the 
voting  should  have  been  by  poUs. 

But  neither  the  circumstances  under  which  they 
were  assembled,  nor  the  dispositions  of  the  members, 

1  The  President  and  Secretary  3  This  opinion,  we  are  told  by 
appear  to  have  been  chosen  viva  Mr.  Adams,  was  advanced  by  Pat- 
voce,  or  by  a  hand  vote.  John  rick  Henry.  See  notes  of  the  de 
Adams's  Works,  II.  365.  bate,  in  Adams,  II.  306,  368 

2  Adams,  II.  306. 


16  THE  FEDERAL  CONSTITUTION.  [Book  I. 

permitted  an  adoption  of  tlie  theory  that  all  gov- 
ernment was  at  an  end,  or  that  the  boundaries  of  the 
colonies  were  effaced.  The  Congress  had  not  assem- 
bled as  the  representatives  of  a  people  in  a  state  of 
nature,  but  as  the  committees  of  different  colonies, 
which  had  not  yet  severed  themselves  from  the  parent 
state.  They  had  been  clothed  with  no  legislative  or 
coercive  authority,  even  of  a  revolutionary  natui'e; 
compliance  with  their  resolves  would  follow  only  on 
conviction  of  the  utility  of  their  measures ;  and  all 
then-  resolves  and  all  their  measui'es  were,  by  the 
express  terms  of  many  of  their  credentials,  lunited  to 
the  restoration  of  union  and  harmony  with  Great 
Britain,  which  woidd  of  course  leave  the  colonies  in 
then-  colonial  state.  The  people  of  the  continent, 
therefore,  as  a  people  m  the  state  of  nature,  or  even 
in  a  national  existence  as  one  people  standing  in  a 
revolutionary  attitude,  had  not  then  come  mto  being. 
The  nature  of  the  questions,  too,  which  they  wei'e 
to  discuss,  and  of  the  measures  which  they  were  to 
adopt,  were  to  be  considered  in  deteiminmg  by 
what  method  of  voting  those  questions  and  meas- 
ures should  be  decided.  The  Congress  had  been 
called  to  secure  the  rights  of  the  colonies.  "\Vhat 
were  those  rights  %  By  what  standard  were  they  to 
be  ascertained?  By  the  law  of  natui-e,  or  by  the 
principles  of  the  English  Constitution,  or  by  the 
charters  and  fundamental  laws  of  the  colonies,  re- 
garded as  compacts  between  the  crown  and  the  peo- 
ple, or  by  all  of  these  combined?  If  the  law  of 
nature  alone  was  to  determine  their  lights,  then  all 


Ch.  I.]  FIRST    CONTINENTAL   UONGKESS.  17 

allegiance  to  the  British  crown  was  to  be  regarded 
as  at  an  end.     K  the  principles  of  the  English  Con- 
stitution, or  the  charters,  were  to  be  the  standard, 
the  law  of  nature  must  be  excluded  from  considera- 
tion.    This  exclusion  would  of  necessity  narrow  the 
ground,  and  deprive  them  of  a  resource  to  which 
Parliament  might  at  last  compel  them  to  look.^     In 
order,  therefore,  to  leave  the  whole  field  open  for 
consideration,  and  at  the  same  time  to  avoid  com- 
mitting themselves  to  principles  iiTeconcilable  with 
the  preservation  of  allegiance  and  their  colonial  rela- 
tion to  Great  Britam,  it  was  necessary  to  consider 
themselves  as  an  assembly  of  committees  from  the 
different  colonies,  m  which  each  colony  should  have 
one  voice,  tlu'ough  the  delegates  whom  it  had  sent 
to  represent  and  act  for  it.     But,  as  if  foreseeing  the 
time  when  population  would  become  of  necessity  the 
basis  of  congressional  power,  when  the  authority  of 
Parliament  should  have  given  place  to  a  system  of 
American   contmental   legislation,  they   inserted,  in 
the   resolve   determming    that    each   colony   should 
have   one   vote,  a  caution   that   would   prevent   its 
being  drawn  into  precedent.     They  declared,  as  the 
reason  for  the  course  w^hich  they  adopted,  that  the 
Congress  were  not  possessed  of,  or  able  to  procui'e, 
the  proper  materials  for  ascertaming  the  importance 
of  each  colony.^ 

It  appears,  therefore,  very  clear,  that  an  examina- 

1  See  the  very  interesting  notes  2  Journals,  1.  10. 

of  their  debates  in  Adams's  Works, 
II.  366,  370-377. 

VOL.    1.  3 


18  THE  EEDEKAL  CONSTITUTION.  [Book  I. 

tioii  of  the  relations  of  the  first  Congress  to  tlie 
colonies  which  instituted  it  will  not  enable  us  to 
assign  to  it  the  character  of  a  government.  Its 
members  were  not  elected  for  the  express  purpose 
of  makuig  a  revolution.  It  was  an  assembly  con- 
vened from  separate  colonies,  each  of  Avhich  had 
causes  of  complamt  agamst  the  imperial  government 
to  which  it  acknowledged  its  allegiance  to  be  due, 
and  each  of  which  regarded  it  as  essential  to  its  o^vn 
interests  to  make  common  cause  mth  the  others,  for 
the  piu'pose  of  obtaining  redress  of  its  own  griev- 
ances. The  idea  of  separating  themselves  from  the 
mother  country  had  not  been  generally  entertained 
by  the  people  of  any  of  the  colonies.  All  their  pub- 
lic proceedings,  from  the  commencement  of  the  dis- 
putes do-\vii  to  the  election  of  delegates  to  the  first 
Congress,  includuig  the  mstructions  given  to  those 
delegates,  prove,  as  we  have  seen,  that  they  looked 
for  redress  and  relief  to  means  which  they  regarded 
as  entirely  consistent  with  the  principles  of  the  Brit- 
ish Constitution.-^ 


1  The  instructions  embraced  in  tween  the  parent  country  and  her 

the  credentials  of  the  delegates  to  colonies."    Massachusetts, — "to 

the    first    Congress   were    as   fol-  deliberate  and  determine  upon  wise 

lows  :  —  New  Hampshire,  —  "  to  and  proper  measures,  to  be  by  them 

devise,   consult,    and    adopt    such  recommended  to  all   the  colonies, 

measures   as   may  have  the   most  for  the  recovery  and  establishment 

likely   tendency   to    extricate    the  of  their  just  rights  and  liberties, 

colonies   from   their   present   diffi-  civil  and  religious,  and  the  restora- 

culties  ;    to  secure  and  perpetuate  tion  of  union  and  harmony  between 

their   rights,   liberties,   and  privi-  Great    Britain   and    the   colonies, 

.eges ;   and  to  restore  that  peace,  most  ardently  desired  by  all  good 

harmony,    and   mutual    confidence  men."        Rhode     Island,  —  "  to 

which  once  happily  subsisted    be-  meet  and  join  with  the  other  com- 


Oh.  I.] 


FIRST  CONTINENTAL   CONGRESS. 


19 


Still,  although  this  Congress  did  not  take  upon 
themselves  the  functions  of  a  government,  or  propose 
revolution  as  a  remedy  for  the  wrongs  of  theii-  con- 
stituents, they  regarded  and  styled  themselves  as 
"the  guardians  of  the  rights  and  liberties  of  the 
colonies";^  and  m  that  capacity  they  proceeded  to 
declare  the  causes  of  complaint,  and  to  take  the 
necessary  steps  to  obtain  redress,  in  what  they  be- 
lieved to   be  a  constitutional   mode.     These   steps 


missioners  or  delegates   from  the 
other  colonies  in  consulting  upon 
proper  measures  to  obtain  a  repeal 
of  the  several  acts  of  the  British 
Parliament  for  levying  taxes  upon 
his  Majesty's  subjects  in  America 
without  their  consent,  and  particu- 
larly the  commercial  connection  of 
the  colonies  with  the  mother  coun- 
try, for  the  relief  of  Boston  and 
the  preservation  of  American  lib- 
erty."    Virginia,  — -  "  to  consider 
of  the  most   proper  and   effectual 
manner  of  so    operating    on  the 
commercial  connection  of  the  colo- 
nies with  the  mother  country,  as 
to  procure  redress  for  the  much 
injured  Province  of  Massachusetts 
Bay,   to   secure   British    America 
from  the  ravage  and  ruin  of  arbi- 
trary taxes,  and   speedily  to  pro- 
cure the   return  of  that   harmony 
and  union  so  beneficial  to  the  whole 
empire,  and  so  ardently  desired  by 
all    British    America."       South 
Carolina,  —  "  to  consider  the  acts 
lately  passed  and   bills  depending 
in  Parliament  with  regard  to  the 
port  of  Boston  and  Colony  of  Mas- 
Bachusetts    Bay,    which    acts   and 


bills,  in  the  precedent  and  conse- 
quences, affect  the  whole  continent 
of  America  ;  —  also  the  grievances 
under   which   America   labors    by 
reason  of  the  several  acts  of  Par- 
liament that  impose  taxes  or  duties 
for  raising  a  revenue,  and  lay  un- 
necessary restraints  and  burdens  on 
trade ;  —  and  of  the  statutes,  par- 
liamentary acts,  and  royal  instruc- 
tions,  which    make   an    invidious 
distinction   between  his   Majesty's 
subjects     in    Great    Britain    and 
America;    with    full    power    and 
authority  to  concert,  agree  to,  and 
effectually    prosecute    such    legal 
measures  as,  in  the  opinion  of  the 
said  deputies  and  of  the  deputies 
so  to  be  assembled,  shall  be  most 
likely  to  obtain  a  repeal  of  the  said 
acts  and  a  redress  of  these  griev- 
ances."    The  delegates  from  New 
York  and  New  Jersey  were  simply 
instructed   "  to   represent  "   those 
colonies  in  the  Congress.      Jour- 
nals, I.  2-9. 

1  Letter    of    the    Congress    to 
Governor  Gage,  October  10,  1771 
Journals,  L  25,  26. 


20  THE  FEDERAL  CONSTITUTION.  [Book  I. 

however,  although  not  directly  revolutionary,  had  a 
revolutionary  tendency. 

On  the  6tli  of  September,  1774,  a  resolve  was 
passed,  that  a  committee  be  appointed  to  state  the 
rights  of  the  colonies  m  general,  the  several  instances 
in  which  those  rights  had  been  violated  or  infi-iiiged, 
and  the  means  most  proper  to  be  piu-sued  for  obtam- 
hig  a  restoration  of  them.  Another  committee  Avas 
ordered  on  the  same  day,  to  examme  and  report  the 
several  statutes  affectmg  the  trade  and  manufactures 
of  the  colonies.  On  the  following  day,  it  w^as 
ordered  that  the  first  committee  should  consist  of 
two  members,  and  the  second  of  one  member,  from 
each  of  the  colonies.^  Two  questions  presented 
themselves  to  the  first  of  these  committees,  and  cre- 
ated a  good  deal  of  embarrassment.  The  first  was, 
whether,  in  stating  the  rights  of  the  colonies,  they 
should  recur  to  the  law  of  nature,  as  well  as  to  the 
British  Constitution  and  the  American  charters  and 
grants.  The  second  question  related  to  the  author- 
ity which  they  should  allow  to  be  in  Parliament ;  — 
whether  they  should  deny  it  wholly,  or  deny  it  only 
as  to  internal  affahs,  admittbig  it  as  to  external 
trade;  and  if  the  latter,  to  what  extent  and  with 
what  restrictions.  It  was  soon  felt  that  this  ques- 
tion of  the  authority  of  Parliament  was  the  essence 
of  the  whole  controversy.  Some  denied  it  altogether. 
Others  denied  it  as  to  every  species  of  taxation ; 
while  others  admitted  it  to  extend  to  the  regulation 

'  Additions  were  made  to  it. 


Cn.  I.]  FIEST  CONTINENTAL    CONGRESS.  21 

of  external  trade,  but  denied  it  as  to  all  internal 
affairs.     The  discussions  had  not  proceeded  far,  be- 
fore it  was  perceived  that  this  subject  of  the  regula- 
tion of  trade  might  lead  directly  to  the  question  of 
the  contmuance  of  the  colonial  relations  mth  the 
mother  coimtry.     For  this  they  were  not  prepared. 
It  was  apparent   that   the  right  of  regulatmg   the 
trade  of  the  whole  country,  fi.-om  the  local  cii'cmn- 
stances  of  the  colonies  and  their  disconnection  with 
each  other,  could  not  be  exercised  by  the  colonies 
themselves :  it  was  thought  that  the  aid,  assistance, 
and  protection  of  the  mother  comitry  were  necessary 
to  them ;  and  therefore,  as  a  proper  equivalent,  that 
the  colonies  must  admit  the  right  of  regulatmo-  the 
trade,  to  some  extent  and  in  some  mode,  to  be  in 
Parliament.      The  alternatives  were,  either  to  set  up 
an  American  legislature,  that  could  control  and  reg- 
ulate the  trade  of  the  whole  country,  or  else  to  give 
the  power  to  Parliament.     The  Congress  determmed 
to  do  the  latter ;  supposing  that  they  could  limit  the 
admission,  by  denying  that  the  power  extended  to 
taxation,  but  ceding  at  the  same  time  the  right  to  reg- 
ulate the  external  trade  of  the  colonies  for  the  com- 
mon benefit  of  the  whole  empire.^     They  gromided 
this  concession  upon  "  the  necessities  of  the  case,"  and 
"the  mutual  interests  of  both  countries "; ^  meanino- 
Jjy  these  expressions  to  assert  that  aU  legislative  con"^ 
trol  over  the  external  and  internal  trade  of  the  colo- 
nies belonged  of  right  to  the  colonies  themselves,  but, 

1  Works  of  John  Adams.  pressions    explained,    in   Adams"s 

2  See  the  origin  of  these   ex-      Works,  II.  ."^TS- 375. 


22  THE  FEDERAL  CONSTITUTION.  [Book  I. 

as  tliey  were  part  of  an  empire  for  Avliicli  Parliament 
legislated,  it  was  necessary  that  the  common  legisla- 
ture of  the  whole  empire  should  retain  the  regulation 
of  the  external  trade,  excluding  all  power  of  taxa- 
tion for  purposes  of  revenue,  in  order  to  secure  the 
benefits  of  the  trade  of  the  whole  emphe  to  the 
mother  country. 

The  Congress,  therefore,  after  havuig  determined 
to  confine  their  statement  to  such  rights  as  had  been 
infrmged  by  acts  of  Parliament  since  the  year  1763, 
unanimously  adopted  a  Declaration  of  Rights,  in 
which  they  summed  up  the  grievances  and  asserted 
the  rights  of  the  colonies.  This  document  placed 
the  rights  of  the  colonies  upon  the  laws  of  nature, 
the  principles  of  the  English  Constitution,  and  the 
several  charters  or  compacts.  It  declared,  that,  as 
the  colonies  were  not,  and  fl-om  their  local  situation 
could  not  be,  represented  in  the  English  Parliament) 
they  were  entitled  to  a  free  and  exclusive  power  of 
legislation  in  their  several  provincial  legislatures, 
where  their  right  of  representation  could  alone  be 
preserved,  in  all  cases  of  taxation  and  internal  polity, 
subject  only  to  the  negative  of  their  sovereign,  in 
such  manner  as  had  been  before  accustomed.  At 
the  same  time_,  from  the  necessity  of  the  case  and 
from  a  regard  to  the  mutual  interests  of  both  coun- 
tries, they  cheerfidly  consented  to  the  operation  of 
such  acts  of  Parliament  as  were  m  good  faith  limited 
to  tlie  regulation  of  their  external  commerce,  for  the 
purpose  of  securing  the  commercial  advantages  of 
the  whole  to  the  mother  country,  and  the  commercial 


Cii.  I.]  FIRST   CONTINENTAL  CONGRESS.  23 

benefit  of  its  respective  members;  excluding  every 
idea  of  taxation,  internal  and  external,  for  raising  a 
revenue  on  the  subjects  in  America,  without  their 
consent.-^ 

In  addition  to  this,  they  asserted,  as  great  consti- 
tutional rights  uiherent  in  the  people  of  all  these 
colonies,  that  they  were  entitled  to  all  the  rights, 
liberties,  and  immunities  of  free  and  natural-born 
subjects  within  the  realm  of  England ;  to  the  com- 
mon law  of  England,  and  especially  to  trial  by  a  jury 
of  the  vicinage ;  to  the  immunities  and  privileges 
granted  and  confirmed  to  them  by  royal  charters,  or 
secured  by  their  several  codes  of  provincial  laws; 
and  to  the  right  of  peaceably  assembling  to  consider 
grievances  and  to  petition  the  Kmg.^ 

In  order  to  enforce  their  complaints  upon  the 
attention  of  the  government  and  people  of  Great 
Britain,  and  as  the  sole  means  which  were  open  to 
them,  short  of  actual  revolution,  of  coercing  the 
ministry  into  a  change  of  measures,  they  resolved 
that  after  the  10th  of  September,  1775,  the  exporta- 
tion of  all  merchandise,  and  every  commodity  what- 
soever, to  Great  Britain,  Ireland,  and  the  West  In- 
dies, ought  to  cease,  unless  the  grievances  of  America 
should  be  redressed  before  that  time ;  and  that  after 
the  first  day  of  December,  1774,  there  should  be  no 
importation  into  British  America,  from  Great  Britain 


1  Journals,  I.  29.  embodying  similar  principles  with 

2  Ibid.      They   adopted  also  an  those  asserted   in   the  Declaration 
Address   to   the   l^ople  of  Great  of  Rights.     Ibid.  38,  67. 
Britain,  and  a  Petition  to  the  King, 


24  THE  FEDERAL  CONSTITUTION.  [Book  I 

or  Ireland,  of  any  goods,  wares,  or  merchandise 
whatever,  or  from  any  other  place,  of  any  such 
goods,  wares,  or  merchandise  as  had  been  exported 
from  Great  Britain  or  Ireland,  and  that  no  such 
goods,  wares,  or  merchandise  be  used  or  purchased.-^ 
They  then  prepared  an  association,  or  agreement,  of 
non-importation,  non-exportation,  and  non-consump- 
tion, in  order,  as  far  as  lay  in  their  power,  to  cause 
a  general  compliance  with  their  resolves.  This  asso- 
ciation was  subscribed  by  every  member  of  the  Con- 
gress, and  was  by  them  recommended  for  adoption  to 
the  people  of  the  colonies,  and  was  very  generally 
adopted  and  acted  upon.^  They  resorted  to  this  as 
the  most  speedy,  effectual,  and  peaceable  measure  to 
obtain  a  redi'ess  of  the  grievances  of  which  the  colo- 
nies complained ;  and  they  entered  into  the  agree- 
ment on  behalf  of  the  inhabitants  of  the  several 
colonies  for  which  they  acted. 

This  Congress,  wdiich  sat  from  the  5tli  of  Sep- 
tember to  the  26th  of  October,  1774,  had  thus  made 
the  restoration  of  commercial  intercourse  between 
the  colonies  and  the  other  parts  of  the  British  empire 
to  depend  upon  the   repeal   by  Parliament    of  the 

1  Journals,  I.  21.  day  of  December  next ;  after  which 

2  This  association,  signed  by  the  time  we  will  wholly  discontinue 
delegates  of  Maryland,  Virginia,  the  slave-trade,  and  will  neither  be 
North  Carolina,  and  South  Caro-  concerned  in  it  ourselves,  nor  will 
lina,  as  well  as  of  the  other  colo-  we  hire  our  vessels,  nor  sell  our 
nies,  contained,  among  other  things,  commodities  or  manufactures,  to 
the  following  agreement:  —  "We  those  who  are  concerned  ii  it." 
will  neither   import  nor  purchase  Journals,  I.  33. 


any  slaves  imported  after  the  first 


• 


Ch.  I.l  FIRST  CONTINENTAL    CONGRESS.  25 

obnoxious  measures  of  which  they  complamecl,  and 
upon  the  recognition  of  the  rights  which  they  as- 
serted ;  for  although  their  acts  had  not  the  founda- 
tion of  laws,  the  general  adoption  of  their  recom- 
mendations throughout  the  colonies  gave  them  a 
power  that  laws  rarely  possess.  Before  they  ad- 
journed, they  recommended  that  another  Congress 
of  all  the  colonies  should  be  held  at  Philadelphia 
on  the  10th  of  the  followmg  May,  unless  their  griev- 
ances were  redi-essed  before  that  time,  and  that«the 
deputies  to  such  new  Congress  should  be  chosen 
immediately.^ 

But  while  the  Continental  Congress  were  engaged 
in  the  adoption  of  these  measures  of  constitutional 
resistance,  and  still  acknowledged  their  colonial  re- 
lations to  the  imperial  government,  the  course  of 
events  m  Massachusetts  had  put  an  end  to  the  forms 
of  law  and  government  in  that  colony,  as  established 
or  upheld  by  imperial  authority.  The  last  Assembly 
held  m  the  Province  upon  the  principles  of  its  char- 
ter had  been  dissolved  by  the  Governor's  proclama- 
tion, at  Salem,  on  the  17th  of  June,  1774.  The  new 
law  for  the  alteration  of  the  government  had  taken 
effect;  and  m  August  the  Governor  received  from 
England  a  Kst  of  thirty-six  councillors,  who  were  to 
be  called  into  office  by  the  Kmg's  writ  of  mandamus^ 
instead  of  being  elected,  as  under  the  charter,  by 
the  House  of  Representatives.  Two  thii'ds  of  the 
number   accepted   their   appointment;    but   popular 


1  Journals,  I.  56.     Oct.  22,  1774. 
4 


26  THE -EEDEKAL  CONSTITUTION.  [Book  I. 

iuclignation,  treating  them  as  enemies  of  their  coun- 
try, compelled  the  greater  part  of  them  to  renounce 
then"  offices.  The  new  judges  were  j)re vented  every- 
where from  proceeding  with  the  husmess  of  the 
courts,  which  were  obstructed  by  assembhes  of  the 
people,  who  would  permit  no  judge  to  exercise  his 
functions,  save  in  accordance  with  the  ancient  laws 
and  usages  of  the  Colony. 

Writs  had  been  issued  for  a  new  General  Assem- 
bly, which  was  to  meet  at  Salem  in  October ;  but  it 
was  foimd,  that,  while  the  old  constitution  had  been 
taken  away  by  act  of  Parhament,  the  new  one  had 
been  rejected  by  the  people.  The  compulsory  resig- 
nation of  so  many  of  the  councillors  left  that  body 
without  power,  and  the  Governor  deemed  it  expe- 
dient to  countemiand  the  writs  by  proclamation,  and 
to  defer  the  holduig  of  the  Assembly  imtil  tlie  pop- 
ular temper  should  have  had  time  to  cool.  But  the 
legality  of  the  proclamation  was  denied;  the  elec- 
tions were  everywhere  held,  and  the  members  elect 
assembled  at  Salem,  pursuant  to  the  precepts.  There 
they  waited  a  day  for  the  Governor  to  attend,  admin- 
ister the  oaths,  and  open  the  session ;  but  as  he  did 
not  appear,  they  resolved  themselves  into  a  Provin- 
cial Congress,  to  be  joined  by  others  who  had  been 
or  might  be  elected  for  that  purpose,  and  adjourned 
to  the  town  of  Cambridge,  to  take  into  consideration 
the  affau'S  of  the  Colony,  ui  which  the  regidar  and 
established  government  was  now  at  an  end.  Theii* 
acts  were  at  first  couched  in  the  fonn  of  recom- 
mendations to  the  people,  whose  ready  compliance 


Ch.  I.]  FIRST   CONTINENT2VL   CONGRESS.  27 

gave  to  them  the  weight  and  efficacy  of  laws,  and 
there  was  thus  formed  somethmg  like  a  new  and 
independent  government.  Under  the  form  of  recom- 
mendation and  advice,  they  settled  the  mditia,  regu- 
lated the  public  revenue,  provided  anns,  and  pre- 
pared to  resist  the  British  troops.  In  December, 
1774,  they  elected  five  persons  to  represent  the  Col- 
ony in  the  Contmental  Congress  that  was  to  assemble 
at  Philadelphia  in  the  ensuing  May.  They  were  met 
by.  a  proclamation,  issued  by  the  Governor,  m  which 
their  assembly  was  declared  unlawful,  and  the  people 
were  proliibited,  in  the  Kmg's  name,  from  complying 
with  their  recommendations,  requisitions,  or  resolves. 
Tlirough  the  whiter,  the  Governor  held  the  toAvn 
of  Boston,  mth  a  considerable  body  of  royal  troops, 
but  the  rest  of  the  Province  generally  yielded  obe- 
cUence  to  the  Provincial  Congress.  In  tliis  posture 
of  affau's,  the  encounter  between  a  detachment  of  the 
King's  forces  and  a  body  of  militia,  commonly  called 
the  battle  of  Lexington,  occurred,  on  the  19th  of 
April,  1775. 


CHAPTER  II. 

1775-1776. 

The  Second  Continental  Congress.  —  Formation  and  Character 
OF  THE  Revolutionary  Government.  —  Appointment  of  a  Com- 
mander-in-Chief. —  First  Army  of  the  Revolution. 


A  NEW  Continental  Congress  assembled  at  Phila- 
delphia on  the  10  th  of  May,  1775 ;  and  in  order  to 
observe  the  growth  of  the  Union,  it  is  necessary  to 
trace  the  organization  of  this  body,  and  to  describe 
briefly  the  kind  of  sovereignty  which  it  exercised, 
from  the  time  of  its  assembling  until  the  adoption 
and  promulgation  of  the  Declaration  of  Indepen- 
dence.^ 


J  Peyton  Randolph,  President 
of  the  first  and  reelected  President 
of  the  second  Congress,  died  very 
suddenly  at  Philadelphia  on  the 
22d  of  October,  1775,  and  was  suc- 
ceeded in  that  office  by  John  Han- 
cock. Mr.  Randolph  was  one  of 
the  most  eminent  of  the  Virginia 
patriots,  and  an  intimate  friend  of 
Washington.  Richard  Henry  Lee 
wrote  to  Washington,  on  the  day 
after  his  death,  that  "  in  him 
American  liberty  lost  a  powerful 
advocate,  and  human  nature  a  sin- 
cere friend."      He  was   formerly 


Attorney-General  of  Virginia,  and 
in  1753  went  to  England  as  agent 
of  the  House  of  Burgesses,  to  pro- 
cure the  abolition  of  a  fee,  known 
as  the  pistole  fee,  which  it  had 
been  the  custom  of  the  Governors 
of  Virginia  to  charge  for  signing 
land  patents,  as  a  perquisite  of  their 
office.  He  succeeded  in  getting 
the  fee  abolished  in  cases  where 
the  quantity  of  land  exceeded  one 
hundred  acres.  He  was  com- 
mander of  a  company  of  mounted 
volunteers  called  the  Gentlemen 
Associators,    who    served    in    the 


Ch.  II.]  SECOND   CONTINENTAL  CONGRESS.  29 

The  delegates  to  this  Congress  were  chosen  partly 
by  the  popular  branch  of  such  of  the  colonial  legis- 
latures as  were  in  session  at  the  time,  the  choice 
bemg  aftenvards  ratified  by  conventions  of  the  peo- 
ple ;  but  they  were  pmicipally  appointed  by  conven- 
tions of  the  people  held  in  the  various  colonies.  All 
these  appointments,  except  those  made  in  New  York, 
took  place  before  the  battle  of  Lexmgton,  and  most 
of  them  had  been  made  in  the  course  of  the  previous 
^^dnter.^  The  credentials  of  the  delegates,  therefore, 
while  they  conferred  authority  to  adopt  measui-es 
to  recover  and  establish  American  rights,  still  ex- 
pressed, in  many  mstances,  a  desii-e  for  the  restora- 
tion of  harmony  between  Great  Britain  and  her 
colonies.  In  some  cases,  however,  this  desire  was 
not  expressed,  but  a  naked  authority  was  granted,  to 
consent  and  agree  to  all  such  measui-es  as  the  Con- 
gress should  deem  necessary  and  effectual  to  obtain 
a  redress  of  American  grievances. 

When  this  Congress  assembled,  it  seems  to  ha-\'e 
been  tacitly  assumed  that  each  colony  should  con- 
tinue to  have  one  vote  through  its  delegation  actu- 
ally present.  All  the  thirteen  colonies  were  repre- 
sented at  the  opening  of  the  session,  except  Georgia 


French  war.      He  was  President  in  December;   in  Connecticut,  in 

of  the  Virginia  Convention,  as  well  November ;  in  New  Jersey,  in  Jan- 

as  a  Delegate  in  Congress,  at  the  uary ;  in  South  Carolina,  in  Feb- 

time  of  his  death.    Sparks's  Wash-  ruary;  in  the  Lower  Counties  on 

ington,  II.  58,  161 ;  III.  139,  140;  Delaware    and    in     Virginia,    in 

XII.  420.  March ;  in  North  Carolina,  on  the 

1  In  Massachusetts,  Pennsylva-  5th  of  April;  and  in  New  York,  on 

nia,  and  Maryland,  they  were  made  the  22d  of  April. 


30  THE   FEDERAL  CONSTITUTION.  [Book  I 

and  Rhode  Island.  Three  days  after  the  session 
commenced,  a  delegate  appeared  from  the  Parish  of 
St.  Johns  in  Georgia,  who  was  admitted  to  a  seat, 
but  did  not  claim  the  right  of  votmg  for  the  colony. 
On  the  15  th  of  May,  a  delegation  from  Khode  Island 
appeared  and  took  their  seats. 

The  credentials  of  the  delegates  contained  no  lim- 
itation of  their  powers  with  respect  to  time,  mth  the 
exception  of  those  from  Massachusetts  and  South 
Carolina,  whose  authority  was  not  to  extend  beyond 
the  end  of  the  year.  The  Congress  contmued  in  ses- 
sion until  the  1st  of  August,  and  then  adjourned 
for  a  recess  to  the  5th  of  September.  AVlien  they 
were  agaui  assembled,  the  delegations  of  several  of 
the  colonies  were  renewed,  -with  different  limitations 
as  to  their  time  of  service.  Georgia  sent  a  full  delega- 
tion, who  took  their  seats  on  the  13th  of  September. 
Still  later,  the  delegations  of  several  other  colonies 
were  renewed  fi'om  time  to  time,  and  this  practice 
was  pursued  both  before  and  after  the  Declaration 
of  Independence,  thus  rendering  the  Congress  a  per- 
manent body.-^ 

Notwithstanding  the  absence  of  any  express  au- 
thority m  their  instnictions  to  enter  upon   revolu- 

1  Virginia  renewed  her  delega-  peared  from  New  Hampshire,  with- 

tion  for  one  year  from  the  lUh  of  out  limitation  of  time  ;  Connecticut 

August,  1775,  and  Maryland  hers  sent  a  new  delegation  on  the  16th 

with  powers  to  act  until  the  25th  of  January,  1776,  and   Massachu- 

of  March,  1776.     These  new  dele-  setts  did  the  same  on  the  31st  of 

gations,  as  well  as  that  of  Georgia,  January,  for  the  year  1776.     The 

appeared  on  the  13th  of  Septem-  persons  of  the  delegates  were  not 

ber,  1775.      On  the   16th  of  Sep-  often  changed, 
lember,  a  renewed  delegation  ap- 


Ch.  n.]  SECOND   COXTINi:NT.iL  CONGRESS.  31 

tionary  measures,  the  circumstances  under  wliich  the 
Congress  assembled  placed  it  in  the  position  and  cast 
upon  it  the  powers  of  a  revolutionary  government. 
Civil  war  had  actually  commenced,  and  blood  had 
been  shed.     Whether  this  war  was  to  be  carried  on 
for  mdependence,  or  was  only  to  be  waged  until  the 
British  muiistry  coidd  be  compelled  to  acknowledge 
the  rights  which  the  colonies  had  asserted,  the  Con- 
gress necessaiily  became,  at  once,  the  orgaji  of  the 
common  resistance  of  the  colonies  against  the  parent 
state.     The  first  thmg  which  evinces  its  new  relation 
to  the  country  was  the  application  made  to  it  by  the 
Provincial  Congress  of  Massachusetts,  immediately 
after  the  battle  of  Lexington,  for  direction  and  as- 
sistance.    While  they  informed  the  Continental  Con- 
gress that  they  had  proceeded,  at  once,  to  raise  a 
force  of  thhteen  thousand  sLx  hundi-ed  men,  and  had 
made  proposals  to  the  other  New  England  colonies 
to  ftirnish  men  m  the  same  proportions,  stating  that 
the  sudden  exigency  of  their  affairs  precluded  the 
possibility  of  waitmg  for   direction,  they  suggested 
that  an  American  army  ought  forth^vith  to  be  raised 
for  the  common  cause.^      In  the  same  manner,  the 
city  and  county  of  New  York  applied  for  the  advice 
of  Congress,   how   to   conduct   themselves  with  re- 
gard to  the  British  troops  expected  m  that  quarter. 
These  apphcations  caused  the  Congress  at  once  to 
resoh  e  itself  mto  a  committee  of  the  whole,  to  take 
into  consideration  the  state  of  America.^ 

1  Journals,  I.  81,  82.  2  ]\iny  15,  1775.     Journals.  1.  162. 


32  THE  FEDERAL  CONSTITUTION.  [Book  I. 

These  proceedings  were  soon  followed  by  another 
application  on  the  part  of  the  Provincial  Convention 
of  Massachusetts,  setting  forth  the  difficulties  under 
which  they  were  laboring  for  want  of  a  regular  form 
of  government ;  requesting  explicit  advice  respecting 
the  formation  of  a  new  government ;  and  offering  to 
submit  to  such  a  general  plan  as  the  Congress  might 
direct  for  the  colonies,  or  to  endeavor  to  form  such  a 
government  for  themselves  as  should  not  only  pro- 
mote their  own  advantage,  but  the  union  and  inter- 
est of  the  whole  country.-^ 

Placed  in  this  manner  at  the  head  of  American 
affairs,  the  Continental  Congress  proceeded,  at  once, 
to  put  the  country  into  a  state  of  defence,  and  virtu- 
ally assumed  a  control  over  the  military  operations 
of  all  the  colonies.  They  appointed  committees  to 
prepare  reports  on  military  measures:  first,  to  rec- 
ommend what  posts  should  be  occupied  in  the  city  of 
New  York ;  secondly,  to  de\ise  ways  and  means  for 
procuiing  ammunition  and  militaiy  stores;  thuxUy, 
to  make  an  estimate  of  the  moneys  necessary  to  be 
raised;  and  fourtlily,  to  prepare  rules  and  regula- 
tions for  the  government  of  the  army. 

They  then  proceeded  to  create  a  contmental,  or 
national  army.  To  the  battle  of  Lexington  had 
succeeded  the  investment  of  Boston,  by  an  army 
composed  of  regiments  raised  by  the  New  England 
pro\Tiiccs,  under  the  command  of  General  Ward  of 
Massachusetts.     This  anny  was  adopted  by  the  Con 

1  Journals,  I.  112. 


Ch.  II.]  SECOND   CONTINEXT^VL  CONGRESS.  33 

gress ;  and,  with  other  forces  raised  for  the  common 
defence,  became  known  and  designated  as  the  Ameri- 
can Continental  Army.^  Six  companies  of  riflemen 
were  ordered  to  be  immediately  raised  in  Pennsyl- 
vania, two  in  Maryland,  and  two  in  Virginia,  and 
directed  to  join  the  amiy  near  Boston,  and  to  be  paid 
by  the  continent.^ 

On  the  15th  of  June,  1775,  Colonel  George  Wash- 
ington, one  of  the  delegates  in  Congress  from  Vu"- 
ginia,  was  imanmiously  chosen  to  be  commander-in- 
chief  of  the  continental  forces.^  Having  accepted  the 
appointment,  he  received  from  the  Congress  a  com- 
mission, together  with  a  resolution  by  which  they 
pledged  their  lives  and  fortunes  to  maintam,  assist, 
and  adhere  to  him  in  his  great  office,  and  a  letter  of 
instructions,  in  wliich  they  charged  him  to  make  it 
his  special  care,  "  that  the  liberties  of  America  receive 
no  detriment."*  In  the  commission  given  to  the  gen- 
eral, the  style  of  "the  United  Colonies"  was  for  the 
first  time  adopted,  and  the  defence  of  American  Lib- 
erty was  assumed  as  the  great  object  of  their  union.^ 
On  the  21st  of  June,  Washmgton  left  Philadelphia 
to  take  command  of  the  army,  and  arrived  at  Cam- 
bridge in  Massachusetts  on  the  2d  of  July.  Four 
major-generals  and  eight  brigadier-generals  were  also 
appomted  by  the  Congress  for  the  continental  army ; 
rules  and  regulations  for  its  government  were  adopted 

1  Form  of  enlistment,  Journals,  ^  Secret  Journals  of  Congress, 

1.118.  I.    18;    Pitkin's    History    of   the 

9  Ibid.  United  States,  I.  334,  335. 

3  See  note  at  end  of  the  chapter.  ^  Journals,  I.  122. 

VOL.    I.  5 


34  THE  FEDERAL  CONSTITUTION.  [Book  I. 

and  proclaimed,  and  the  pay  of  the  officers  and  pri- 
vates was  fixed.-^ 

The  Congress  also  proceeded,  as  the  legislative  au- 
thority of  the  United  Colonies,  to  create  a  continental 
currency,  in  order  to  defray  the  expenses  of  the  war. 
This  was  done  by  issumg  two  millions  of  dollars,  in 
bills  of  credit,  for  the  redemption  of  which  the  faith 
of  the  confederated  colonies  was  pledged.  A  quota 
of  this  sum  was  apportioned  to  each  colony,  and 
each  colony  was  made  liable  to  discharge  its  pro- 
portion of  the  whole,  but  the  United  Colonies  were 
obligated  to  pay  any  part  which  either  of  the  colo- 
nies should  fail  to  discharge.^  The  first  of  these 
quotas  was  made  payable  in  four,  the  second  in  five, 
the  third  in  six,  and  the  fourth  in  seven  years  from 
the  last  day  of  November,  1775,  and  the  provincial 
assemblies  or  conventions  were  requu'ed,  by  the  re- 
solves of  the  Congress,  to  provide  taxes  in  their 
respective  provinces  or  colonies,  to  discharge  theu* 
several  quotas.^  The  Congress  also  dhected  rejorisals 
to  be  made,  both  by  public  and  private  armed  ves- 
sels, against  the  ships  and  goods  of  the  inhabitants 
of  Great  Britain  found  on  the  high  seas,  or  between 
high  and  low  water-mark ;  this  bemg  a  measure  of 
retaliation  against  an  act  of  Parliament,  which  had 
authorized  the  capture  and  condemnation  of  Ameri- 
can vessels,  and  which  was  considered  equivalent  to  a 
declaration  of  war.     They  also  threw  open  the  ports 

1  June  16 -July  4,  1775.    Jour-       1775.      Ibid.,    I.    185,    July    29, 
nals,  I.  112-133.  1775. 

2  Journals,    I.    125,    June    23,  3  ibid. 


Cii.  II.]  SECOND  CONTINENTAIi  CONGRESS.  3l» 

of  the  United  Colonies  to  all  the  world,  except  the 
domuiions  and  dependencies  of  Great  Britain. 

Further,  they  established  a  general  Treasury  De- 
partment, by  the  appomtment  of  two  joint  Treasurers 
of  the  United  Colonies,  who  were  required  to  give 
bonds  for  the  faitliful  performance  of  the  duties  of 
their  office,^  and  they  organized  a  general  Post-Offi.ce, 
by  the  appomtment  of  a  Postmaster-General  for  the 
United  Colonies,  to  hold  his  office  at  Philadelphia, 
to  appouit  deputies,  and  to  establish  a  line  of  posts 
from  Falmouth  in  Massachusetts  to  Savannah  m 
Georgia,  with  such  cross  posts  as  he  should  judge 
proper.^ 

The  proceedings  of  the  Congress  on  the  subject 
of  the  Militia  were,  of  course,  m  the  nature  of  rec- 
ommendations only.  They  advised  the  armmg  and 
training  of  the  militia  of  New  York,  in  May,  1775,^ 
and  in  July  they  recommended  to  aU  the  colonies  to 
enroll  aU  the  able-bodied,  effective  men  among  their 
inhabitants,  between  sixteen  and  fifty  years  of  age, 
and  to  form  them  mto  proper  regmients.*  The  pow- 
ers of  the  Congress  to  call  into  the  field  the  militia 
thus  embodied  were  considered  to  be  subject  to  the 
consent  of  those  exercismg  the  executive  powers  of 
government  m  the  colony,  for  the  time  bemg.^ 

The  relations  of  the  country  with  the  Indian  tribes 

1  Journals,!.  186, July 29,  1775.  Postmaster-General  for  one  year 
Michael  Hillegas  and  George  Cly-  and    until   another   should   be   ap- 
mer,  Esquires,  were  elected  Trcas-  pointed  by  a  future  Congress, 
urers.  ^  Journals,  I.  106. 

2  Journals,  I.  177,  178,  July  26,  ^  Journals,  I.  170. 
1775.     Dr.    Friuikliii    was  electetl  ■*  Journals,  I.  285. 


36  THE  FEDERAL  CONSTITUTION.  [Book  I. 

and  nations  were  deemed  to  be  properly  Avithin  the 
exclusive  jurisdiction  of  the  Congress.  Three  de 
partments  of  Indian  Aifaii's,  Northern,  Southern,  and 
INIiddle,  mth  separate  commissioners  for  each,  were 
therefore  established  in  July,  having  power  to  treat 
with  the  Indians  in  the  name  and  on  behalf  of  the 
United  Colonies.^  Negotiations  and  treaties  were  en- 
tered into  by  these  departments,  and  all  affaks  with 
the  Indians  were  conducted  by  them,  under  the  diiec- 
tion  and  authority  of  the  Congress.^ 

With  regard  to  those  inhabitants  of  the  country 
who  adhered  to  the  royalist  side  of  the  controversy, 
the  Congress  of  1775-6  did  not  assume  and  exer- 
cise du'ectly  the  powers  of  arrest  or  restraint,  but  left 
the  exercise  of  such  powers  to  the  provincial  assem- 
bUes,  or  conventions,  and  committees  of  safety,  m  the 
respective  colonies,  Avith  recommendations  from  time 
to  time  as  to  the  mode  in  which  such  powers  ought 
tp  be  exercised.^ 

Besides  all  this,  the  different  applications  made  to 
the  Congress  by  the  people  of  Massachusetts,*  of 
New  Hampsliire,^  of  Virgmia,*"  and  of  South  Caro- 
lina, concerning  the  proper  exercise  of  the  powers 
of  government  in  those  colonies,  and  the  answers  to 
those  applications,  furnish  very  important  illustra- 
tions of  the  position  in  which  the  Congress  were 
placed.      To  the  people  of  Massachusetts,  they  de- 


1  Journals,  I.  161,  162.  4  June  9,  1775. 

2  Journals,   II.    112.    lil,  163,          5  November  3,  1775. 
201,  255,  302,  304.  6  December  4,  1775. 

3  Journals,  1.  213:   II.  5. 


Ch.  II.]  SECOND  CONTINENTAL  CONGRESS.  37 

clared  that  no  obedience  was  due  to  the  act  of  Par- 
liament for  altering  their  charter,  and  that,  as  the 
Governor  and  ^  Lieutenant-Governor  would  not  ob- 
serve the  directions  of  that  instrument,  but  had 
endeavored  to  subvert  it,  their  offices  ought  to  be 
considered  vacant ;  and,  as  the  Council  was  actu- 
ally vacant,  in  order  to  conform  as  near  as  might 
be  to  the  spirit  and  substance  of  the  charter,  they 
recommended  to  the  Provincial  Convention  to  write 
letters  to  the  inhabitants  of  the  several  towns  en- 
titled to  representation  in  the  Assembly,  request- 
ing them  to  choose  representatives,  and  requesting 
the  Assembly  when  chosen  to  elect  coimcillors ; 
adding  their  wish,  that  these  bodies  should  exer- 
cise the  powers  of  government  until  a  Governor  of 
the  Kings  appomtment  would  consent  to  govern 
the  colony  according  to  its  charter.^  The  Provincial 
Conventions  of  New  Hampshire,  Virginia,  and  South 
Carolina  were  advised  to  call  a  fidl  and  free  represen- 
tation of  the  people,  m  order  to  establish  such  a 
form  of  government  as,  in  their  judgment,  woidd 
best  promote  the  happiness  of  the  people  and  most 
effectually  secure  peace  and  good  order  m  their  Prov 
inces,  during  the  continuance  of  the  dispute  with 
Great  Britain.^  This  advice  manifestly  contemplated 
the  establishment  of  provisional  governments  only. 

But  between  the  date  of  these  last  proceedings  and 
the  following  spring  a  marked  change  took  place, 
both  in  the  expectations  and  vvishes  of  the  people  of 

1  Journals,  I.  ll.'j.  2  Journals,  I.  231,  235,  279. 


38  THE  FEDERAL  CONSTITUTION.  [Book  I. 

most  of  the  colonies,  with  regard  to  an  accommoda- 
tion of  the  great  controversy.  The  last  petition  of 
the  Congress  to  the  King  was  refused  a  hearing  in 
Parliament,  as  emanatmg  from  an  unla'wful  assembly, 
in  arms  agamst  their  sovereign.  In  November,  the 
town  of  Fahnouth  in  Massachusetts  was  bombarded 
and  destroyed  by  the  King's  cruisers.  In  the  latter 
part  of  December,  an  act  was  passed  m  Parliament, 
prohibitiag  all  trade  and  commerce  mtli  the  colo- 
nies ;  warranting  the  capture  and  condemnation  of 
all  American  vessels,  Avith  their  cargoes,  and  author- 
izing the  commanders  of  the  King's  ships  to  compel 
the  masters,  crevrs,  and  other  persons  found  in  such 
vessels,  to  enter  the  King's  service.  The  act  also 
empowered  the  King  to  appoint  commissioners,  with 
authority  to  grant  pardon,  on  submission,  to  individ- 
uals and  to  colonies,  and  after  such  submission  to 
exempt  them  from  its  operation.^  Great  prepara- 
tions were  made  to  reduce  the  colonies  to  the  sub- 
mission required  by  this  act,  and  a  part  of  the  troops 
that  were  to  be  employed  were  foreign  mercenaries. 

The  necessity  of  a  complete  separation  from  the 
mother  comitry,  and  the  establishment  of  indepen- 
dent governments,  had,  therefore,  in  the  winter  of 
1775  -  6,  become  apparent  to  the  people  of  America. 
Accordingly,  the  Congress,  asserting  it  to  be  irrecon- 
cilable to  reason  and  good  conscience  for  the  people 
of  the  colonies  any  longer  to  take  the  oaths  and 
affirmations  necessary  for  the  support  of  any  govern- 

1  Annual  Ren:ister. 


Ch.  II.]  SECOND   CONTINENTAL  CONGRESS.  39 

meiit  under  the  croAVii  of  Great  Britain,  and  declar- 
ing that  the  exercise  of  every  kind  of  authority  under 
that  crown  ought  to  be  suppressed,  and  a  government 
of  the  people  of  the  colonies  substituted  in  its  place, 
recommended  to  the  respective  assemblies  and  con- 
ventions of  the  colonies,  where  no  government  suffi- 
cient- for  the  exigencies  of  their  affairs  had  been 
already  estabhshed,  to  adopt  such  a  government  as 
in  the  opmion  of  the  representatives  of  the  people 
would  best  conduce  to  the  happiness  and  safety  of 
their  constituents  and  of  America  in  general.^ 

It  is  apparent,  therefore,  that,  previously  to  the 
Declaration  of  Independence,  the  people  of  the  sev- 
eral colonies  had  established  a  national  government 
of  a  revolutionary  character,  wdiich  undertook  to  act, 
and  did  act,  in  the  name  and  "vvith  the  general  con- 
sent of  the  mhabitants  of  the  country.  This  govern- 
ment was  established  by  the  union,  in  one  body,  of 
delegates  representing  the  people  of  each  colony; 
who,  after  they  had  thus  united  for  national  pur- 
poses, proceeded,  in  their  respective  jurisdictions,  by 
means  of  conventions  and  other  temporary  arrange- 
ments, to  provide  for  their  domestic  concerns  by  the 
establishment  of  local  governments,  which  shoidd 
be  the  successors  of  that  authority  of  the  British 
crown  which  they  had  "  everywhere  suppressed." 
The  fact  that  these  local  or  state  governments  were 
not  formed  until  a  union  of  the  people  of  the  differ- 

1  May  10,  1776.     Journals,  II.  166,  174. 


40  THE  FEDEEAL   COXSTITUTION.  [Book  L 

ent  colonies  for  national  purposes  had  already  taken 
place,  and  until  the  national  power  had  authorized 
and  recommended  their  establishment,  is  of  great 
importance  in  the  constitutional  history  of  this 
country ;  for  it  shows  that  no  colony,  actmg  sepa- 
rately for  itself,  dissolved  its  owm  allegiance  to  the 
British  crown,  but  that  this  allegiance  was  dissolved 
by  the  supreme  authority  of  the  people  of  all  the 
colonies,  acting  through  their  general  agent,  the  Con- 
gress, and  not  only  declaring  that  the  authority  of 
Great  Britain  ought  to  be  suppressed,  but  recom- 
mending that  each  colony  shoidd  supplant  that  au- 
thority by  a  local  government,  to  be  framed  by  and 
for  the  people  of  the  colony  itself 

The  powers  exercised  by  the  Congress,  before  the 
Declaration  of  Independence,  show,  therefore,  that  its 
functions  were  those  of  a  revolutionary  government. 
It  is  a  maxim  of  political  science,  that,  when  such  a 
government  has  been  instituted  for  the  accomplish- 
ment of  great  purposes  of  public  safety,  its  powers 
are  limited  only  by  the  necessities  of  the  case  out  of 
which  they  have  arisen,  and  of  the  objects  for  which 
they  were  to  be  exercised.  "When  the  acts  of  such 
a  government  are  acquiesced  in  by  the  people,  they 
are  presumed  to  have  been  ratified  by  the  people. 
To  the  case  of  our  Revolution,  these  principles  are 
strictly  applicable,  throughout.  The  Congress  as- 
sumed, at  once,  the  exercise  of  all  the  powers  de- 
manded by  the  public  exigency,  and  their  exercise  of 
those  powers  was  fully  acquiesced  in  and  confirmed 
by  the  people.     It  docs  not  at  all  detract  from  the 


Ch.  n.]  SECOND   CONTINENTAL  CONGRESS.  41 

authoritative  character  of  their  acts,  nor  diminish  the 
real  powers  of  the  Revolutionary  Congress,  that  it 
was  obliged  to  rely  on  local  bodies  for  the  execution 
of  most  of  its  orders,  or  that  it  couched  many  of 
those  orders  in  the  fonn  of  recommendations.  They 
were  complied  with  and  executed,  in  point  of  fact,  by 
the  provincial  congresses,  conventions,  and  local  com- 
mittees, to  such  an  extent  as  fully  to  confinn  the 
revolutionary  powers  of  the  Congress,  as  the  guar- 
dians of  the  rights  and  liberties  of  the  country.  But 
we  shall  see,  in  the  furtlier  progress  of  the  history 
of  the  Congress,  that  while  its  powers  remained  en- 
tirely revolutionary,  and  were  consequently  coexten- 
sive -s^dth  the  great  national  objects  to  be  accom- 
plished, the  want  of  the  proper  machinery  of  ci^il 
government  and  of  independent  agents  of  its  own 
rendered  it  wholly  incapable  of  ^vielding  those  pow 
ers  successfully. 


NOTE   TO  PAGE   33. 

ON  Washington's  appointment  as  commander-in-chief. 

The  circumstances  which  attended  the  appointment  of  Washington  to 
this  great  command  are  now  quite  well  known.  He  had  been  a  member 
of  the  Congress  of  1774,  and  his  military  experience  and  accomplish- 
ments, and  the  great  resources  of  his  character,  had  caused  his  appoint- 
ment on  all  the  committees  charged  with  making  preparations  for  the 
defence  of  the  colonies.  Returned  as  a  delegate  from  Virginia  to  the 
Congress  of  1775,  his  personal  qualifications  pointed  him  out  as  the 
fittest  person  in  the  whole  country  to  be  invested  with  the  command  of 
any  army  which  the  United  Colonies  might  see  fit  to  raise  ;  and  it  is 
quite  certain  that  there  would  have  been  no  hesitation  about  the  appoint- 

voi,.  I,  3 


42  TIIE   FEDERAL   CONSTITUTION.  [Book  1 

nient,  if  some  political  considerations  had  not  been  suggested  as  obsta- 
cles. At  the  moment  when  the  choice  was  to  ne  made,  the  scene  of 
actual  operations  was  in  Massachusetts,  where  an  army  composed  of 
troops  wholly  raised  by  the  New  England  colonies,  and  under  the  com- 
mand of  General  Ward,  of  that  Province,  was  besieging  the  enemy  in 
Boston.  This  army  was  to  be  adopted  by  the  Congress  into  the  service 
of  the  continent,  and  serious  doubts  were  entertained  by  some  of  the 
members  of  the  Congress  as  to  the  policy  of  appointing  a  Southern 
general  to  the  command  of  it,  and  a  good  deal  of  delicacy  was  felt  on 
account  of  General  Ward,  who,  it  was  thought,  might  consider  him- 
self injured  by  such  an  appointment.  On  the  other  hand,  there  were 
strong  reasons  for  selecting  a  general-in-chief  from  Virginia.  That 
colony  had  taken  the  lead,  among  the  Southern  provinces,  in  the  cause 
of  the  continent,  and  the  appointment  seemed  to  be  due  to  her,  if  it  was 
to  be  made  upon  political  considerations.  The  motives  for  this  policy 
were  deemed  sufBcient  to  outweigh  the  objections  arising  from  the  char- 
acter and  situation  of  the  army  which  the  general  would,  in  the  first 
instance,  have  to  command.  But  after  all,  it  cannot  be  doubted,  that 
the  preeminent  qualifications  of  Washington  had  far  more  weight  with 
the  majority  of  the  Congress,  than  any  dictates  of  mere  policy,  between 
one  part  of  the  Union  and  another,  or  any  local  jealousies  or  sectional 
ambition. 

Mr.  John  Adams,  whose  recently  published  autobiography  contains 
some  statements  on  this  subject,  speaks  of  the  existence  of  a  Southern 
party  against  a  Northern,  and  a  jealousy  against  a  New  England 
army  under  the  command  of  a  New  England  general,  which,  he  says, 
he  discovered  after  the  Congress  had  been  some  time  in  session,  and 
after  the  necessity  of  having  an  army  and  a  general  had  become  a 
topic  of  conversation.  (Works,  II.  415.)  In  a  letter,  also,  written 
by  Mr.  Adams  in  1822  to  Timothy  Pickering,  he  states  that,  on  the 
journey  to  Philadelphia,  he  and  a  party  of  his  colleagues,  the  dele- 
gates from  Massachusetts  to  this  Congress,  were  met  at  Frankfort  by 
Dr.  Rush,  Mr.  Mifflin,  Mr.  Bayard,  and  others  of  the  Philadelphia 
patriots,  who  desired  a  conference  with  them ;  that,  in  this  confer- 
ence, the  Philadelphia  gentlemen  strongly  advised  the  Massachusetts 
delegates  not  to  come  forward  with  bold  measures,  or  to  endeavor  to  take 
the  lead  ;  and  represented  that  Virginia  was  the  most  populous  State  in 
the  Union,  proud  of  its  ancient  dominions,  and  that  "  they  [the  Virgini- 
ans] think  they  have  a  right  to  take  the  lead,  and  the  Southern  States, 
and  the  Middle  States,  too,  are  too  much  disposed  to  yield  it  to  them." 

"1  must  confess,"  says  Mr.   Adams,  "that  there  appeared  so  much 


Ch.  n.]  SECOND    CONTINENTi'LL   CONGRESS.  43 

wisdom  and  good  sense  in  this,  that  it  made  a  deep  impression  on  my 
mind,  and  it  had  an  equal  effect  on  all  my  colleagues."  "This  con- 
versation," he  continues,  "and  the  principles,  facts,  and  motives  sug- 
gested in  it,  have  given  a  color,  complexion,  and  character  to  the  whole 
policy  of  the  United  States  from  that  day  to  this.  Without  it,  Mr. 
Washington  would  never  have  commanded  our  armies;  nor  Mr.  Jeffer- 
son have  been  the  author  of  the  Declaration  of  Independence ;  nor  Mr. 
Richard  Henry  Lee  the  mover  of  it ;  nor  Mr.  Chase  the  mover  of  foreign 
connections.  If  I  have  ever  had  cause  to  repent  of  any  part  of  this  pol- 
icy, that  repentance  ever  has  been  and  ever  luill  be  unavailing.  I  had 
forgot  to  say,  nor  had  Mr.  Johnson  ever  have  been  the  nominator  of 
Washington  for  general."     (Works,  II.  512,  513.) 

Without  impeaching  the  accuracy  of  Mr.  Adams's  recollection,  on  the 
score  of  his  age  when  this  letter  was  written,  and  without  considering  here 
how  or  why  Mr.  Jefferson  came  to  be  the  author  of  the  Declaration  of  In- 
dependence, it  is  believed  that  Mr.  Adams  states  other  facts,  in  his  auto- 
biography, sufficient  to  show  that  motives  of  policy  towards  Virginia  were 
710^  the  sole  or  the  principal  reasons  why  Washington  was  elected  gen- 
eral. Mr.  Adams  states  in  his  autobiography,  that  at  the  time  when  he 
observed  the  professed  jealousy  of  the  South  against  a  New  England 
army  under  the  command  of  a  Northern  general,  it  was  very  visible  to 
him  "  that  Colonel  Washington  was  their  object " ;  "  and,"  he  adds,  "  so 
many  of  our  stanchest  men  were  in  the  plan,  that  we  could  carry  noth- 
ing without  conceding  it."  (Works,  II.  415.)  When  Mr.  Adams 
came,  as  he  afterwards  did,  to  put  himself  at  the  head  of  this  movement, 
and  to  propose  in  Congress  that  the  army  at  Cambridge  should  be 
adopted,  and  that  a  general  should  be  appointed,  he  referred  directly  to 
Washington  as  the  person  whom  he  had  in  his  mind,  and  spoke  of  him 
as  "  a  gentleman  from  Virginia  who  was  among  us  and  very  well  known 
to  all  of  us,  a  gentleman  whose  skill  and  experience  as  an  officer,  whose 
independent  fortune,  great  talents,  and  excellent  universal  character 
would  command  the  approbation  of  all  America,  and  unite  the  cordial 
exertions  of  all  the  colonies  better  than  any  other  person  in  the  Union. 
Mr.  Washington,  who  happened  to  sit  near  the  dooif,  as  soon  as  lie  heard 
me  allude  to  him,  from  his  usual  modesty,  darted  into  the  library-room." 
(Works,  II.  417.)  It  is  quite  clear,  therefore,  that  Mr.  Adams  put  the 
appointment  of  Washington,  in  public,  upon  his  qualifications  and  char- 
acter, known  all  over  the  Union.  He  further  states,  that  the  subject 
came  under  debate,  and  that  nobody  opposed  the  appointment  of  Wash- 
ington on  account  of  any  personal  objection  to  him ;  and  the  only  objec- 
tion which  he  mentions  as  having  been  raised,  was  on  the  ground  that  the 
army  near  Boston  was  all  from  New  England,  and  that  they  had  a  gen- 


44  THE  FEDEE^VL  CONSTITUTION.  [Book  I. 

eral  of  their  own,  with  whom  they  were  entirely  satisfied.  He  mentions 
one  of  the  Virginia  delegates,  Mr.  Pendleton,  as  concurring  in  this  objec- 
tion ;  that  Mr.  Sherman  of  Connecticut  and  Mr.  Gushing  of  Massachu- 
setts also  concurred  in  it,  and  that  Mr.  Paine  of  Massachusetts  expressed 
strong  personal  friendship  for  General  Ward,  but  gave  no  opinion  upon 
the  question.  Afterwards,  he  says,  the  subject  being  postponed  to  a 
future  day,  "  pains  were  taken  out  of  doors  to  obtain  a  unanimity,  and 
the  voices  were  generally  so  clearly  in  favor  of  Washington,  that  the 
dissentient  members  were  persuaded  to  withdraw  their  opposition,  and 
Mr.  Washington  was  nominated,  I  believe,  by  Mr.  Thomas  Johnson  of 
Vlaryland,  unanimously  elected,  and  the  army  adopted."     (Ibid.) 

It  is  worth  while  to  inquire,  therefore,  what  were  the  controlling 
reasons,  which  so  easily  and  so  soon  produced  this  striking  unanimity. 
If  it  was  brought  about  mainly  by  the  exertions  of  a  Southern  against  a 
Northern  party,  and  by  the  yielding  of  Northern  men  to  the  Virginians 
from  motives  of  policy,  it  would  not  have  been  accomplished  with  so 
much  facility,  although  even  a  Washington  were  the  candidate  of  Vir- 
ginia. Sectional  jealousies  and  sectional  parties  inflame  each  other ; 
the  struggles  which  they  cause  are  protracted  ;  and  the  real  merits  of  men 
and  things  are  lost  sight  of  in  the  passions  which  they  arouse.  If  policy, 
as  a  leading  or  a  principal  motive,  gave  to  General  Washington  the  great 
body  of  the  Northern  votes,  there  would  have  been  more  dissentients 
from  that  policy  than  any  of  the  accounts  authorize  us  to  suppose  there 
were,  at  any  moment,  while  the  subject  was  under  consideration.  Nor 
does  the  previous  conduct  of  Virginia  warrant  the  belief,  that  her  subse- 
quent exertions  in  the  cause  of  American  liberty  were  mainly  purchased 
by  the  honors  bestowed  upon  her  great  men,  or  by  so  much  of  precedence 
as  was  yielded  in  the  public  councils  to  the  unquestionable  abilities  of  her 
statesmen.  Some  of  them  had  undoubtedly  been  in  favor  of  measures  of 
conciliation  to  a  late  period  ;  and  some  of  them,  as  Washington,  Patrick 
Henry,  and  Richard  Henry  Lee,  had  been,  from  an  early  period,  con- 
vinced that  the  sword  must  decide  the  controversy.  They  were  perhaps 
as  much  divided  upon  this  point,  until  the  army  at  Boston  was  adopted, 
as  the  leading  men  of  other  colonies.  But  when  the  necessity  of  that 
measure  became  apparent,  it  was  the  peculiar  happiness  of  Virginia  to  be 
able  to  present  to  the  country,  as  a  general,  a  man  whose  character  and 
qualifications  threw  all  local  and  political  objects  at  once  into  the  shade. 
In  order  to  form  a  correct  judgment,  at  the  present  day,  of  the  motives 
which  must  have  produced  a  unanimity  so  remarkable  and  so  prompt,  we 
have  only  to  recollect  the  previous  history  of  Washington,  as  it  was 
known  to  the  Congress,  at  the  moment  when  he  shrank  from  the  mention 
of  his  name  in  that  assembly. 


Ch.  II.]  SECOND   CONTINENT^VL  CONGRESS.  -iO 

He  was  forty-three  years  of  age.  From  early  youth,  he  had  had 
a  training  that  eminently  fitted  him  for  the  great  part  which  he  was 
afterwards  to  play,  and  which  unfolded  the  singular  capacities  of  his 
character  to  meet  the  extraordinary  emergencies  of  the  post  to  which 
he  was  subsequently  called.  That  training  had  been  both  in  military 
and  in  civil  life.  His  military  career  had  been  one  of  much  activ- 
ity and  responsibility,  and  had  embraced  several  brilliant  achieve- 
ments. In  1751,  it  became  necessary  to  put  the  militia  of  Virginia  in  a 
condition  to  defend  the  frontiers  against  the  French  and  the  Indians. 
The  province  was  divided  into  military  districts,  in  each  of  which  an 
adjutant-general,  with  the  rank  of  major,  was  commissioned  to  drill  and 
inspect  the  militia.  Washington,  at  the  age  of  nineteen,  received  the 
appointment  to  one  of  these  districts ;  and  in  the  following  year,  the 
province  was  again  divided  into  four  grand  military  divisions,  of  which 
the  northern  was  assigned  to  him  as  adjutant-general.  In  1753,  the 
French  crossed  the  lakes,  to  establish  posts  on  the  Ohio,  and  were  joined 
by  the  Indians.  Major  Washington  was  sent  by  the  Governor  of  A'ir- 
ginia  to  warn  them  to  retire.  This  expedition  was  one  of  difficulty  and 
of  delicacy.  He  crossed  the  Alleghany  Mountains,  reached  the  Ohio, 
had  interviews  with  the  French  commander  and  the  Indians,  and  returned 
to  Williamsburg  to  make  report  to  the  Governor.  Of  this  journey,  full 
of  perilous  adventures  and  narrow  escapes,  he  kept  a  journal,  which  was 
published  by  the  Governor  ;  was  copied  into  most  of  the  newspapers 
of  the  other  colonies;  and  was  reprinted  "in  London,  as  a  document  of 
much  importance,  exhibiting  the  views  and  designs  of  the  French.  In 
1754,  he  was  appointed,  with  the  rank  of  lieutenant-colonel,  second  in 
command  of  the  provincial  troops  raised  by  the  Legislature  to  repel  the 
French  invasion.  On  the  first  encounter  with  a  party  of  the  enemy 
under  J^monville,  on  the  28th  of  May,  1754,  the  chief  command  devolved 
on  Washington,  in  the  absence  of  his  superior.  The  French  leader  was 
killed,  and  most  of  his  party  were  taken  prisoners.  Washington  com- 
manded also  at  the  battle  of  the  Great  Meadows,  and  received  a  vote  of 
thanks  for  his  services  from  the  House  of  Burgesses.  This  was  in  1754, 
when  he  was  at  the  age  of  twenty-two.  During  the  next  year,  in  conse- 
quence of  the  effect  of  some  new  arrangement  of  the  provincial  troops,  he 
was  reduced  from  the  rank  of  colonel  to  that  of  captain,  and  thereupon  re- 
tired from  the  army,  with  the  consolation  that  he  had  received  the  thanks 
of  his  country  for  the  services  he  had  rendered.  In  1755,  he  consented 
to  serve  as  aide-de-camp  to  General  Braddock,  who  had  arrived  from 
England  with  two  regiments  of  regular  troops.  In  this  capacity  he 
served   in  the  battle  of  the  Monongahela  with   much  distinction.     The 


46  THE  FEDEEAIi  CONSTITUTION.  [Book  I. 

f.wo  other  aids  were  wounded  and  disabled  early  in  the  action,  and  the 
duty  of  distributing  the  General's  orders  devolved  wholly  upon  Wash- 
ington. It  was  in  this  battle  that  he  acquired  with  the  Indians  the  repu- 
tation of  being  under  the  special  protection  of  the  Great  Spirit,  because 
he  escaped  the  aim  of  many  of  their  rifles,  although  two  horses  were  shot 
under  him,  and  his  dress  was  perforated  by  four  bullets.  His  conduct  on 
this  occasion  became  known  and  celebrated  throughout  the  country  ;  and 
when  he  retired  to  Mount  Vernon,  as  he  did  soon  after,  at  the  age  of 
three-and-twenty,  he  not  only  carried  with  him  a  decisive  reputation  foi 
personal  bravery,  but  he  was  known  to  have  given  advice  to  Braddock, 
before  the  action,  which  all  men  saw,  after  it,  would,  if  it  had  been  duly 
heeded,  have  prevented  his  defeat.  But  he  was  not  allowed  to  remain 
long  in  retirement.  In  August,  1755,  he  was  appointed  commander-in- 
chief  of  all  the  provincial  forces  of  Virginia,  and  immediately  entered  upon 
the  duties  of  reorganizing  the  old  and  raising  new  troops,  in  the  course 
of  which  he  visited  all  the  outposts  along  the  frontier.  Soon  afterwards, 
a  dispute  about  rank  having  arisen  with  a  person  who  claimed  to  take 
precedence  of  provincial  officers  because  he  had  formerly  held  the  King's 
commission,  it  became  necessary  for  Colonel  Washington  to  make  a  visit 
to  Boston,  in  order  to  have  the  point  decided  by  General  Shirley,  the 
commander-in-chief  of  his  Majesty's  armies  in  America,  He  commenced 
his  journey  on  the  4th  of  February,  1756,  and  passed  through  Philadel- 
phia, New  York,  New  London,  Newport,  and  Providence,  and  visited 
the  Governors  of  Pennsylvania  and  New  York.  In  all  the  principal 
cities  his  character,  and  his  remarkable  escape  at  Braddock's  defeat,  made 
him  the  object  of  a  strong  public  interest.  At  Boston,  he  was  received 
with  marked  distinction  by  General  Shirley  and  by  the  whole  society  of 
the  town,  and  the  question  of  rank  was  decided  according  to  his  wishes. 
General  Shirley  explained  to  him  the  intended  operations  of  the  next 
campaign ;  and,  after  an  absence  from  Virginia  of  seven  weeks,  he  re- 
turned to  resume  his  command.  The  next  three  years  were  spent  in  the 
duties  of  this  laborious  and  responsible  position,  the  difficulties  and  em- 
barrassments of  which  bore  a  strong  resemblance  to  those  which  he 
afterwards  had  to  encounter  in  the  war  of  the  Revolution.  In  1758,  he 
commanded  the  Virginia  troops  in  the  expedition  against  Fort  Du- 
quesne,  under  General  Forbes.  Great  deference  was  paid  by  that  officer 
to  his  opinions  and  judgment,  in  arranging  the  line  of  march  and  order 
of  battle,  on  this  important  expedition;  for  the  fate  of  Braddock  was 
before  him.  The  command  of  the  advanced  division,  consisting  of  one 
thousand  men,  was  assigned  to  him,  with  the  temporary  rank  of  briga- 
dier.    Wlieri   the   army  Iiiid  appron'-liod  within  (iftv  miles  of  Fort  Du- 


Ch.  n.]  SECOND   CONTINENTAL  CONGRESS.  47 

quesne,  the  French  deserted  it ;  its  surrender  to  the  English  closed  the 
campaign ;  and  in  December  Washington  resigned  his  commission,  and 
retired  to  Mount  Vernon.  What  he  had  been,  and  what  he  then  was,  to 
the  Colony  of  Virginia,  is  shown  by  the  Address  presented  to  him  by 
the  officers  of  the  provincial  troops,  on  his  retirement.  "  In  our  earliest 
infancy,"  said  they,  "you  took  us  under  your  tuition,  trained  us  up  in 
the  practice  of  that  discipline  which  alone  can  constitute  good  troops, 
from  the  punctual  observance  of  which  you  never  suffered  the  least  devia- 
tion. Your  steady  adherence  to  impartial  justice,  your  quick  discern- 
ment, and  invariable  regard  to  merit,  wisely  intended  to  inculcate  those 
genuine  sentiments  of  true  honor  and  passion  for  glory,  from  which  the 
greatest  military  achievements  have  been  derived,  first  heightened  our 
natural  emulation  and  our  desire  to  excel.  How  much  we  improved  by 
those  regulations  and  your  own  example,  with  what  alacrity  we  have 
hitherto  discharged  our  duty,  with  what  cheerfulness  we  have  encoun- 
tered the  severest  toils,  especially  while  under  your  particular  directions, 
we  submit  to  yourself,  and  flatter  ourselves  that  we  have  in  a  great  meas- 
ure answered  your  expectations It  gives  us  additional  sorrow, 

when  we  reflect,  to  find  our  unhappy  country  will  receive  a  loss  no  less 
irreparable  than  our  own.  Where  will  it  meet  a  man  so  experienced  in 
military  affairs,  one  so  renowned  for  patriotism,  conduct,  and  courage* 
Who  has  so  great  a  knowledge  of  the  enemy  we  have  to  deal  with  ? 
Who  so  well  acquainted  with  their  situation  and  strength?  Who  so 
much  respected  by  the  soldiery  ?  Who,  in  short,  so  able  to  support  the 
military  character  of  Virginia?  Your  approved  love  to  your  King  and 
country,  and  your  uncommon  perseverance  in  promoting  the  honor  and 
true  interest  of  the  service,  convince  us  that  the  most  cogent  reasons 
only  could  induce  you  to  quit  it;  yet  we,  with  the  greatest  deference, 
presume  to  entreat  you  to  suspend  those  thoughts  for  another  year,  and 
to  lead  us  on  to  assist  in  the  glorious  work  of  extirpating  our  enemies, 
towards  which  so  considerable  advances  have  already  been  made.  In 
you  we  place  the  most  implicit  confidence.  Your  presence  only  will 
cause  a  steady  firmness  and  vigor  to  actuate  every  breast,  despising  the 
greatest  dangers,  and  thinking  light  of  toils  and  hardships,  while  led  on 
by  the  man  we  know  and  love.  But  if  we  must  be  so  unhappy  as  to 
part,  if  the  exigencies  of  your  affairs  force  you  to  abandon  us,  we  beo-  it 
as  our  last  request,  that  you  will  recommend  some  person  most  capable 
to  command,  whose  military  knowledge,  whose  honor,  whose  conduct, 
and  whose  disinterested  principles  we  may  depend  on.  Frankness  sin- 
cerity, and  a  certain  openness  of  soul,  are  the  true  characteristics  of  an 
officer,  and  we  flatter  ourselves  that  you  do  not  think  us  capable  of  sayina 


■48  THE  FEDERAL  CONSTITUTION.  [Book  L 

any  thing  contrary  to  the  purest  dictates  of  our  minds.  Fully  persuaded 
of  this,  we  beg  leave  to  assure  you,  that,  as  you  have  hitherto  been  the 
actuating  soul  of  our  whole  corps,  we  shall  at  all  times  pay  the  most 
invariable  regard  to  your  will  and  pleasure,  and  shall  be  always  happy 
to  demonstrate  by  our  actions  with  how  much  respect  and  esteem  we 
are,"  &c. 

Washington's  marriage  took  place  soon  after  his  resignation  (January 
Gth,  1759),  and  his  civil  life  now  commenced.  He  had  been  elected  a 
member  of  the  House  of  Burgesses,  before  the  close  of  the  campaign, 
and  in  the  course  of  the  winter  he  took  his  seat.  Upon  this  occasion, 
his  inability,  from  confusion  and  modesty,  to  reply  to  a  highly  eulo- 
gistic address  made  to  him  by  the  Speaker,  Mr.  Robinson,  drew  from 
that  gentleman  the  celebrated  compliment,  "  Sit  down,  Mr.  Washing- 
ton, your  modesty  equals  your  valor,  and  that  surpasses  the  power  of 
'  any  language  that  I  possess."  He  continued  a  member  of  the  House 
of  Burgesses  until  the  commencement  of  the  Revolution,  a  period  of  fif- 
teen years.  He  was  not  a  frequent  speaker  ;  but  his  sound  judgment, 
quick  perception,  and  firmness  and  sincerity  of  character,  gave  him  an 
influence  which  the  habit  of  much  speaking  does  not  give,  and  which  is 
often  denied  to  eloquence.  As  the  time  drew  near,  when  the  controver- 
sies between  the  colonies  and  England  began  to  assume  a  threatening 
aspect,  he  was  naturally  found  with  Henry,  Randolph,  Lee,  Wythe,  and 
Mason,  and  the  other  patriotic  leaders  of  the  colonies.  His  views  con- 
cerning the  policy  of  the  non-importation  agreements  were  early  formed 
and  made  known.  In  1769,  he  took  charge  of  the  Articles  of  Associa- 
tion, drawn  by  Mr.  Mason,  which  were  intended  to  bring  about  a  concert 
of  action  between  all  the  colonies,  for  the  purpose  of  presenting  them  to 
the  Assembly,  of  which  Mr.  Mason  was  not  a  member.  In  1774,  he 
was  chosen  a  member  of  the  first  Virginia  Convention,  and  was  by  that 
body  elected  a  delegate  to  the  first  Continental  Congress,  where  he  was 
undoubtedly  the  most  conspicuous  person  present.  The  second  Virginis 
Convention  met  in  March,  1775,  and  reelected  the  former  delegates  t( 
the  second  Continental  Congress,  from  which  Washington  was  removes 
by  his  appointment  as  Commander-in-chief. 

There  can  be  no  doubt,  therefore,  that  Washington  was  chosen  Com- 
mander-in-chief for  his  unquestionable  merits,  and  not  as  a  compromise 
between  sectional  interests  and  local  jealousies. 

(The  authorities  for  the  statements  in  this  note  concerning  Washing- 
ton's history  are  the  biographies  by  Marshall  and  Sparks,  and  the  Writ- 
ings of  Washington,  edited  by  the  latter.) 


CHAPTER  III. 

1776-1777. 


Continuance  of  the  Revolutionaky  Government.  —  Declaration 
OF  Independence.  —  Preparations  for  a  New  Government.  — 
Formation  of  the  Continental  Army. 

On  the  7tli  of  June,  1776,  after  the  Congress  had 
in  fact  assumed  and  exercised  sovereign  powers  "with 
the  assent  of  the  people  of  America,  a  resolution  was 
moved  by  Richard  Henry  Lee  of  Vu'ginia,  and  sec- 
onded by  John  Adams  of  Massachusetts,  "That  these 
United  Colonies  are,  and  of  right  ought  to  be,  free 
and  independent  states ;  and  that  all  political  con- 
nection between  them  and  the  state  of  Great  Britaui 
is  and  ought  to  be  totally  suppressed."^     This  resolu 


^  Richard  Henry  Lee,  the  mover 
of  this  resolution,  was  born  on  the 
20th  of  June,  1732,  at  Stratford, 
Westmoreland  County,  Virginia. 
His  earlier  education  vi'as  com- 
pleted in  England,  whence  he  re- 
turned in  his  nineteenth  year. 
Possessed  of  a  good  fortune,  he 
devoted  himself  to  public  affairs. 
At  the  age  of  twenty-five,  he  en- 
tered the  Hous*  of  Burgesses, 
where  he  became  a  distinguished 
advocate   of  republican    doctrines, 

VOL.    I.  7 


and  a  strenuous  opponent  of  the 
right  claimed  by  Parliament  to  tax 
the  colonies,  of  the  Stamp  Act, 
and  of  the  other  arbitrary  meas- 
ures of  the  home  government,  co- 
operating with  Patrick  Henry  in 
all  his  great  patriotic  efforts.  He 
was  the  author  of  the  plan  adopted 
by  the  House  of  Burgesses  in 
1773,  for  the  formation  of  commit- 
tees of  correspondence,  to  be  or 
ganized  by  the  colonial  legisla- 
tures, and  out  of  which  grew  the 


50 


THE  FEDEEAL  CONSTITUTION. 


[Book  I. 


tion  was  referred  to  a  committee  of  the  whole,  and 
was  debated  until  the  10th,  when  it  was  adopted  in 
committee.  On  the  same  day,  a  committee,  consisting 
of  five  members,^  was  instructed  to  prepare  a  decla- 
ration "that  these  United  Colonies  are,  and  of  right 
ought  to  be,  free  and  independent  states ;  that  they 
are  absolved  from  all  allegiance  to  the  British  crown; 
and  that  all  political  connection  between  them  and 
the  state  of  Great  Britain  is,  and  ought  to  be,  dis- 
solved."    The  resolution  introduced  bv  Mr.  Lee  on 


plan  of  the  Continental  Congress. 
In  1774,  he  was  elected  one  of 
the  delegates  from  Virginia  to  the 
Congress,  in  which  body,  from 
his  known  ability  as  a  political 
writer  and  his  services  in  the 
popular  cause,  he  was  placed  on 
the  committees  to  prepare  the  ad- 
dresses to  the  King,  to  the  Peo- 
ple of  Great  Britain,  and  to  the 
People  of  the  Colonies,  the  last  of 
which  he  wrote.  In  the  second 
Congress,  he  was  selected  to  move 
the  resolution  of  Independence ; 
and  besides  serving  on  other  very 
important  committees,  he  fur- 
nished, as  chairman  of  the  com- 
mittee instructed  to  prepare  them, 
the  commission  and  instructions  to 
General  Washington.  As  mov- 
er of  the  resolution  of  Indepen- 
dence, he  would,  according  to  the 
usual  practice,  have  been  made 
chairman  of  the  committee  to  pre- 
pare the  Declaration ;  but  on  the 
10th  of  June,  the  day  when  the 
subject  was  postponed,  he  was 
obliged  to  leave  Congress,  and  re- 
turn home  for  a  short  time,  on  ac- 


count of  the  illness  of  some  mem- 
ber of  his  family.  He  came  back 
to  Congress  and  remained  a  mem- 
ber until  June,  1777,  when  he  went 
home  on  account  of  ill  health.  In 
August,  1778,  he  was  again  elect 
ed  a  member,  and  continued  to 
serve  until  1780 ;  but  from  feeble 
health  was  compelled  to  take  a 
less  active  part  than  he  had  taken 
in  former  years.  He  was  out  of 
Congress  from  1780  until  1784, 
when  he  was  elected  its  President, 
but  retired  at  the  end  of  the  year. 
He  was  opposed  to  the  Constitu- 
tion of  the  United  States,  but  voted 
in  Congress  to  submit  it  to  the 
people.  After  its  adoption,  he 
was  elected  one  of  the  first  Sena- 
tors under  it  from  Virginia,  and  in 
that  capacity  moved  and  carried 
several  amendments.  In  1792,  his 
continued  ill  health  obliged  him  to 
retire  from  public  life.  He  died 
June  19,  1794. 

1  Tliomas  Jefferson,  John  Ad- 
ams, Benjamin^  Franklin,  Rogei 
Sherman,  and  R.  R.  Livingston. 


Ch.  ni.]   THE  EEVOLUTIONARY  GOVERNMENT.      51 

the  7th  was  postponed  until  the  1st  of  July,  to  give 
time  for  greater  unanimity  among  the  members,  and 
to  enable  the  people  of  the  colonies  to  instruct  and 
Influence  thek  delegates. 

The  postponement  was  immediately  followed  by 
proceeduigs  m  the  colonies,  in  most  of  which  the 
delegates  in  Congress  were  either  instructed  or  au- 
thorized to  vote  for  the  resolution  of  Independence  ; 
and  on  the  2d  of  July  that  resolution  recei^^ed  the 
assent  m  Congress  of  aU  the  colonies,  excepting 
Pennsylvania  and  Delaware.  The  Declaration  of 
Independence  was  reported  by  the  committee,  who 
had  been  instructed  to  prepare  it,  on  the  28th  of 
June,  and  on  the  4th  of  July  it  received  the  vote 
of  every  colony,  and  was  published  to  the  world.^ 

This  celebrated  instrument,  regarded  as  a  legisla- 
tive  proceeding,  was  the  solemn  enactment,  by  the 
representatives  of  all  the  colonies,  of  a  complete  dis- 
solution of  theii"  allegiance  to  the  British  cro^\Ti.  It 
severed  the  political  connection  between  the  people 
of  this  comitry  and  the  people  of  England,  and  at 
once  erected  the  diiferent  colonies  into  free  and  inde- 
pendent states.  The  body  by  which  tliis  ste-p  was 
taken  constituted  the  actual  government  of  the  na- 
tion, at  the  time,  and  its  members  had  been  directly 
invested  with  competent  legislative  power  to  take 
it,  and  had  also  been  specially  instructed  to  do  so. 
The  consequences  flowing  from  its  adoption  were, 
that  the  local  allegiance  of  the  inhabitants  of  each 

^  See  note  at  the  end  of  the  chapter. 


52  THE  FEDEEAL  CONSTITUTION.  [Book  I. 

colony  became  transferred  and  due  to  the  colony 
itself,  or,  as  it  was  expressed  by  the  Congress,  be- 
came due  to  the  laws  of  the  colony,  from  which 
they  derived  protection;'^  that  the  people  of  the 
country  became  thenceforth  the  rightful  sovereign  of 
the  comitry ;  that  they  became  united  in  a  national 
corporate  capacity,  as  one  people;  that  they  could 
thereafter  enter  into "  treaties  and  contract  alliances 
with  foreign  nations,  could  levy  war  and  conclude 
peace,  and  do  all  other  acts  pertaining  to  the  exercise 
of  a  national  sovereignty;  and  finally,  that,  in  their 
national  corporate  capacity,  they  became  known  and 
designated  as  the  United  States  of  America.  This 
Declaration  was  the  first  national  state  paper  in 
which  these  words  were  used  as  the  style  and  title 
of  the  nation.  In  the  enacting  part  of  the  instru- 
ment, the  Congress  styled  themselves  "the  rep- 
resentatives of  the  United  States  of  America  in. 
general  Congress  assembled";  and  from  that  period, 
the  pre\iously  "United  Colonies"  have  been  kno^vn 
as  a  political  community,  both  withm  their  o"\vn 
borders  and  by  the  other  nations  of  the  world,  by 
the  title  which  they  then  assumed.^ 

^  On  the  24th  of  June,  1776,  the  nies,  being  entitled  to  the  protcc- 

Congress   declared,  by  resolution,  tion  of  the  laws,  during  the  tinne 

that  "  all   persons  abiding  within  of  such  passage,  visitation,  or  tem- 

any  of  the  United  Colonies,  and  porary  stay,  owed,  during  the  same, 

deriving  protection  from  the  laws  allegiance  thereto."     Journals,  II. 

of  the  same,  owed  allegiance  to  216. 

the  said  laws,  and  were  members  2  The  title  of  "  The  United 
of  such  colony;  and  that  all  per-  States  of  America"  was  formally, 
sons  passing  through  or  making  a  assumed  in  the  Articles  of  Con- 
temporary stay  in  any  of  the  colo-  federation,  when  they  came  to  be 


Ch.  m.]    THE  EEVOLUTIONARY  GOVERNMENT.       53 

Oil  the  same  clay  on  which  the  committee  for 
preparing  the  Declaration  of  Independence  was  ap- 
pointed, another  committee,  consisting  of  one  mem- 
ber from  each  colony,  was  directed  "to  prepare  and 
digest  the  form  of  a  confederation  to  be  entered  into 
between  these  colonies."  Tliis  committee  reported 
a  draft  of  Articles  of  Confederation,  on  the  12th  of 
July,  which  were  debated  in  Congress  on  several 
occasions  between  that  day  and  the  20th  of  August 
of  the  same  year,  at  which  tune  a  new  ch'aft  was 
reported,  and  ordered  to  be  printed.  The  subject 
was  not  again  resmned,  until  the  8th  of  Apnl,  1777; 
but,  between  that  date  and  the  15  th  of  the  following 
November,  smidry  amendments  were  discussed  and 
adopted,  and  the  whole  of  the  articles,  as  amended, 
were  printed  for  the  use  of  the  Congress  and  the 
State  Legislatures.  On  the  17th  of  November,  a 
circular  letter  was  reported  and  adopted,  to  be  ad- 
dressed to  the  Legislatiu'es  of  the  thirteen  States,  rec- 
ommending to  them  "to  mvest  the  delegates  of  the 
State  with  competent  powers,  ultimately,  in  the  name 
and  behalf  of  the  State,  to  subscribe  Articles  of  Con 
federation  and  Perpetual  Union  of  the  United  States, 
and  to  attend  Congress  for  that  purpose  on  or  before 
the  10th  day  of  March  next."^ 

adopted.  But  it  was  in  use,  with-  where  the  words  "  United  Colo- 
out  formal  enactment,  from  the  nies "  had  been  used,  the  style 
date  of  the  adoption  of  the  Dec-  should  be  altered  to  the  "  United 
laration  of  Independence.  On  the  States."  Journals,  11.  349. 
9th  of  September,  1776,  it  was  ^  Journals,  II.  263,  320;  III. 
ordered  that  in  all  continental  com-  123,  502,  513. 
missions    and    other    instruments, 


54  THE  FEDEEAL  CONSTITUTION.  [Book  I 

A  year  and  five  months  had  thus  elapsed,  between 
the  agitation  of  the  subject  of  a  new  form  of  national 
government,  and  the  adoption  and  recommendation 
of  a  foim,  by  the  Congress,  for  the  consideration  of 
the  States.-^  Diu'ing  this  interval,  the  affairs  of  the 
comitry  were  admmistered  by  the  Revolutionaiy  Con- 
gress, which  had  been  instituted,  originally,  for  the 
purpose  of  obtaming  redress  peaceably  from  the  Brit- 
ish ministry,  but  which  afterwards  became  de  facto 
the  government  of  the  country,  for  all  the  purposes 
of  revolution  and  independence.  In  order  to  appre- 
ciate the  objects  of  the  Confederation,  the  obstacles 
which  it  had  to  encounter,  and  the  mode  in  which 
those  obstacles  were  finally  overcome,  it  is  necessary 
here  to  take  a  brief  survey  of  the  national  afiahs 
during  the  period  beginning  with  the  commencement 
of  the  war  and  the  Declaration  of  Independence, 
and  extending  to  the  date  of  the  submission  of  the 
Articles  of  Confederation  to  the  State  Legislatm-es. 
From  no  point  of  view  can  so  much  instruction  be 
derived,  as  firom  the  position  in  which  Washington 
stood,  during  this  period.  By  following  the  fortunes 
and  appreciating  the  exertions  of  liim  who  had  been 
charged  with  the  great  military  duty  of  achie^dng  the 
liberties  of  the  country,  and  especially  by  observing 
his  relations  with  the  government  that  had  under- 
taken the  war,  we  can  best  understand  the  fitness  of 
that  government  for  the  great  task  to  which  it  had 
been  called. 

I  From  June  11,  1776,  to  November  17,  1777. 


Oh.  in.]        THE   REVOLUTIONARY   GOVERKMENT.  55 

The  continental  government,  which  commissioned 
and  sent  General  Washington  to  take  the  command 
of  the  army  which  it  had  adopted,  consisted  solely 
of  a  body  of  delegates,  chosen  to  represent  the  peo- 
ple of  the  several  colonies  or  states,  for  certam  pnr- 
poses  of  national  defence,  safety,  redress,  and  revolu- 
tion. When  the  war  had  actually  commenced,  and 
the  United  Colonies  were  engaged  in  waging  it,  the 
Congress  possessed,  theoretically  and  rightfidly,  large 
political  powers,  of  a  vague  revolutionary  nature; 
but  practically,  they  had  little  direct  civil  power, 
either  legislative  or  executive.  They  were  obliged  to 
rely  almost  wholly  on  the  legislatiu'es,  provincial 
congresses  and  committees,  or  other  local  bodies  of 
the  several  colonies  or  states,  to  carry  out  their  plans. 
When  Washington  arrived  at  Cambridge  and  found 
the  army  then  encamped  around  Boston  in  a  state 
requiring  it  to  be  entu'ely  remodelled,  he  came  as  the 
general  of  a  government  which  could  do  little  more 
for  him  than  recommend  him  to  the  Provincial  Con- 
gress, to  the  Committee  of  Safety,  and  to  the  promi- 
nent citizens  of  Massachusetts  Bay.  The  people  of 
the  United  States,  at  the  present  day,  surrounded  by 
the  apparatus  of  national  power,  can  form  some  idea 
of  AVashmgton's  position,  and  of  that  of  the  govern- 
ment which  he  served,  from  the  fact  that,  when  he 
left  Philadelphia  to  take  the  command  of  the  army, 
he  requested  the  Massachusetts  delegates  to  recom- 
mend to  him  bodies  of  men  and  respectable  indi- 
viduals, to  w^hom  he  might  apply^^  to  get  done, 
through  voluntary  cooperation,  what  was  absolutely 


56  THE  FEDERAL   CONSTITUTION.  [Book  I. 

essential  to  the  existence  of  that  army.^  In  truth, 
the  whole  of  his  residence  in  Massachusetts  during 
the  summer  of  1775,  and  the  A\dnter  of  1775-6, 
until  he  saw  the  British  fleet  go  down  the  harbor  of 
Boston,  was  filled  with  complicated  difficulties,  which 
sprang  from  the  nature  of  the  revolutionary  govern- 
ment and  the  defects  in  its  civil  machmery,  far  more 
than  fi.-om  any  and  all  other  causes.  These  difficul- 
ties requii-ed  the  exertion  of  great  intellectual  and 
physical  energy,  the  application  of  consummate  pru- 
dence and  forecast,  and  the  patience  and  fortitude 
which  in  him  were  so  happily  combmed  with  poAver. 
They  would  have  broken  down  many  of  the  greatest 
generals  whom  the  world  has  seen;  but  it  is  our 
good  fortune  to  be  able  to  look  back  upon  his 
effijrts  to  encounter  them  as  among  the  more  promi- 
nent and  strikmg  manifestations  of  the  strength  of 
Washington's  mind  and  character,  and  as  among  the 
most  valuable  proofs  of  what  we  owe  to  him. 

On  the  one  side  of  him  was  the  body  of  delegates, 
sitting  at  Philadelphia,  by  whom  he  had  been 
commissioned,  who  constituted  the  government  of 
America,  and  from  whom  every  direction,  order,  or 
requisition,  concerning  national  affairs,  necessarily 
proceeded.  Cn  the  other  side  were  the  Provincial 
Congresses,  and  other  public  bodies  of  the  New 
England  colonies,  on  whom  he  and  the  Congress 
were  obliged  to  rely  for  the  execution  of  theu*  plans. 
He  was   compelled  to  become  the  director  of  this 

1  Sparks's  Washington,  HI.  20,  note. 


Ch.  in.]        THE   REVOLUTIONARY  GOVERNMENT.  57 

complicated  machinery.  There  were  committees  of  the 
Congress,  charged  mth  the  different  branches  of  the 
public  service ;  but  General  Washington  was  obhged 
to  attend  personally  to  every  detail,  and  to  suggest. 
to  urge,  and  to  entreat  action  upon  all  the  subjects 
that  concerned  the  army  and  the  campaign.  His 
letters,  addressed  to  the  President  of  Congress,  were 
read  in  that  body,  and  votes  or  resolutions  Avere 
passed  to  give  effect  to  his  requests  or  recommenda- 
tions. But  this  was  not  enough.  Having  obtained 
the  proper  order  or  requisition,  he  Avas  next  obliged 
to  see  that  it  was  executed  by  the  local  bodies  or 
magistrates,  with  whom  he  not  infrequently  was 
forced  to  discuss  the  whole  subject  anew.  He  met 
with  great  readiness  of  attention,  and  every  dis- 
position to  make  things  personally  convenient  and 
agreeable  to  him ;  but  he  found,  as  he  has  recorded, 
a  vital  and  inherent  principle  of  delay,  incompati- 
ble with  military  service,  m  the  necessity  he  was 
under  to  transact  business  through  such  numerous 
and  different  channels.^  His  applications  to  the 
Governor  of  Connecticut  for  huntmor-shhts  for  the 
army;^  to  the  Governor  of  Rhode  Island  for  pow- 
der;^ to  the  Massachusetts  Pro\incial  Congress  to 
apprehend  deserters  and  to  furnish  supplies ;  *  and 
to  the  New  York  Provincial  Congress  to  prevent 
their  citizens  from  trading  -with  the  enemy  in  Bos- 
ton,^—  together  with  the  earnest  appeals  which  he 
was  obliged  to  make  on  these  and  many  other  sub- 

1  Works,  III.  20.  3  Ibid.  47.  5  ibid.  56. 

2  Ibid.  46.  4  Ibid.  55. 

VOL.    I.  8 


58  THE  FEDERAL  CONSTITUTION.  [Book  i 

jects,  which  should  never  have  been  pennitted  to 
embarrass  hun,  —  show  how  feeble  were  the  powers 
and  how  defective  w^as  the  machinery  of  the  govern- 
ment which  he  served. 

But  there  are  two  or  three  topics  which  it  w^ill  be 
necessary  to  examine  more  particularly,  in  order  fully 
to  understand  the  character  and  working  of  the  revo- 
lutionary government.  The  first  of  these  is  the  for- 
mation of  the  army. 

In  order  to  carry  on  a  war  of  any  duration,  it  is 
the  settled  result  of  all  experience,  that  the  soldier 
should  be  bound  to  serve  for  a  period  long  enough 
to  msure  disciphne  and  skill,  and  shoid.d  be  imder 
the  mfluence  of  motives  wliich  look  to  substantial 
pecuniary  rewards,  as  well  as  those  founded  on  pa- 
triotism. According  to  Washington's  experience,  this 
is  as  true  of  officers  as  it  is  of  common  sf)ldiers ;  and 
undoubtedly  no  army  can  be  formed,  and  kept  long 
enough  in  the  field  to  be  relied  upon  for  the  accom- 
plishment of  great  purposes,  if  these  maxims  are  neg- 
lected in  its  organization. 

Unfortunately,  the  Revolutionary  Congress,  at  the 
very  commencement  of  the  war,  committed  the  se- 
rious error  of  enlisting  soldiers  for  short  periods. 
When  Washington  arrived  at  Cambridge,  the  anny 
which  the  Congress  had  just  adopted  as  the  conti- 
nental establishment  consisted  of  certain  regiments, 
raised  on  the  spur  of  the  moment  by  the  provinces 
of  Massachusetts,  New  Hampshke,  Ehode  Island, 
and  Connecticut;  acting  under  their  respective  offi- 
cers ;  regulated  by  their  own  militia  laws ;  and,  with 


Ch.  in.]   THE  REVOLUTIONARY  GOVERNMENT.      59 

the  exception  of  those  from  Massachusetts,  under 
no  legal  obligation  to  Obey  the  general  then  in 
command.  The  terms  of  service  of  most  of  these 
men  would  expire  m  the  autumn ;  and  as  they  had 
enlisted  under  their  local  governments  for  a  special 
object,  and  had  not  been  in  service  long  enough  to 
have  merged  then*  habits  of  thinking  and  feeling, 
as  New  England  citizens,  m  the  character  of  sol- 
diers, they  denied  the  power  of  their  own  govern- 
ments or  of  the  Congress  to  transfer  them  into 
another  service,  or  to  retam  them  after  their  enlist- 
ments had  expired.-^  The  army  was  therefore  to 
be  entirely  remodelled ;  or,  to  speak  more  correctly, 
an  army  was  to  be  formed,  by  making  enlistments 
under  the  Articles  of  War  which  had  been  adopted 
by  the  Congress,  and  by  organizing  new  regiments 
and  brigades  under  officers  holding  continental  com- 
missions. But  the  greatest  difficidties  had  to  be 
encountered  in  this  undertaking.  The  contmental 
Articles  of  War  required  a  longer  term  of  service 
than  any  of  these  troops  had  origmally  engaged  for, 
and  the  rules  and  regulations  were  far  more  stringent 
than  the  discipline  to  which  they  had  hitherto  been 
subjected.  There  was,  moreover,  great  reluctance, 
on  the  part  of  both  officers  and  men,  to  serve  in 
regunents  consistmg  of  the  inhabitants  of  different 
colonies.  A  Connecticut  captain  would  not  serve 
under  a  Massachusetts  colonel;  a  Massachusetts  coio- 

1  Letters  of  General  "Washing-      98)  ;  October  30, 1775  (Ibid.  137) ; 
ton  to  the  President  of  Congress,      Novembers,  1775  (Ibid.  146). 
September  21,  1775  (Works,  III. 


60  THE  FEDERAL  CONSTITUTION.  [Book  I. 

nel  was  unwilling  to  command  Rhode  Island  men ; 
and  the  men  were  equally  indisposed  to  serve  under 
officers  from  another  colony,  or  under  any  officers, 
in  fact,  but  those  of  their  own  choosing.-^ 

In  this  state  of  things,  a  committee,  consisting  of 
Dr.  Franldin,  Mr.  L}iich,  and  Colonel  Harrison,  was 
sent  by  the  Congress  to  confer  with  General  Wash- 
ington and  with  the  local  governments  of  the  New 
England  colonies,  on  the  most  effectual  method  of 
continmng,  supportmg,  and  regulating  a  contmental 
army.^  This  committee  arrived  at  Cambridge  on  the 
18th  of  October,  and  sat  until  the  24th.®  They  ren- 
dered very  important  services  to  the  commander-in- 
chief,  in  the  organization  of  the  aimy ;  but  in  fomi- 
ing  this  first  military  establishment  of  the  Union, 
the  strange  error  Avas  committed  by  the  Congress,  of 
enlisting  the  men  for  the  tenn  of  one  year  only, 
if -not  sooner  discharged;  —  a  capital  mistake,  the 
consequences  of  which  were  severely  felt  tlu'oughout 
the  whole  war. 

There  is  no  reason  to  suppose  that  General  Wash- 
ington concurred  in  the  expediency  of  such  short 
enlistments,  then  or  at  any  other  time ;  but  he  was 
obliged  to  yield  to  the  pressm-e  of  the  causes  to 
which  the  mistake  is  fairly  to  be  attributed.  In 
fact,  we  find  him,  m  a  short  time  after  the  new  sys- 

1  Letters  of  General  Washing-  ernor   Cooke   of  Connecticut,  De- 
ton  to  Joseph  Reed,  November  8,  cember  5,  1775  (Ibid.  188). 
1775  (Works,  IIL   150)  ;  Novem-  2  Journals  of  Congress,  II.  208, 
bar  28,  1775  (Ibid.  177)  ;  and  to  September  29,  1775. 
the  President  of  Congress,  Decern-  ^  Writings  of  Washington,  III. 
ber  4,  1775  (Ibid.  181)  ;  to  Gov-  123,  note. 


Ch.  ni.J         THE  EEVOLUTIONARY   GOVERNMENT.  61 

tern  had  been  put  into  operation,  pointing  it  out  as  a 
fatal  error,  in  a  letter  to  the  President  of  Congress.^ 
The  error  may  have  been  owing  to  the  character  of 
the  government,  to  the  opinions  and  prejudices  pre- 
vailmg  in  Congress,  and  to  the  delusive  idea,  which 
stni  lingered  in  the  minds  of  many  of  the  members, 
that,  although  the  sword  had  been  drawn,  the  scab- 
bard was  not  wholly  thro^vn  aside,  and  that  they 
should  be  able  to  coerce  the  British  mmistry  into  a 
redress  of  grievances,  which  might  be  followed  by  a 
restoration  of  the  relations  between  the  colonies  and 
the  mother  country,  upon  a  constitutional  basis.  No 
such  idea  was  entertained  by  Wasliington,  fi:om  the 
beginning.  He  entertained  no  thought  of  accommo- 
dation, after  the  measures  adopted  in  consequence 
of  the  battle  of  Bunker's  Hill. 

But  at  the  time  of  wliich  we  are  treatmg,  the  issue 
Had  not  been  made,  as  Wasliington  woidd  have  made 
it ;  and,  when  we  consider  the  state  of  things  before 
the  Declaration  of  Independence  was  adopted,  and 
look  attentively  at  the  objects  for  which  the  Con- 
gress had  been  assembled,  and  at  the  nature  of  their 
powers,  we  may  perceive  how  they  came  to  make  the 
mistake  of  not  organizing  a  military  establishment 
on  a  more  permanent  footmg. 

The  delegates  to  the  first  Congress  wei'e,  as  we 
have  seen,  sent  with  instructions,  which  were  sub- 
stantially the  same  m  all  the  colonies.  These  in- 
structions, in  some  instances,  looked  to  "a  redress 

I  February  9,  1776  (Works,  III.  278). 


62  THE  FEDEEAL  CONSTITUTION.  [Book  I. 

of  grievances,"  and  in  others,  to  "the  recovery  and 
establishment  of  the  just  rights  and  liberties  of  the 
colonies";  and  the  delegates  were  directed  "to  delib- 
erate npon  wise  and  proper  measures,  to  be  by  them 
recommended  to  all  the  colonies,"  for  the  attainment 
of  these  objects.  But  with  this  was  coupled  the 
declared  object  of  a  "restoration  of  union  and  har- 
mony" upon  "constitutional  principles."  We  have 
seen  how  far  this  body  proceeded  towards  a  revo- 
lution. The  second,  or  Revolutionary  Congress,  was 
composed  of  delegates  who  were  originally  assembled 
under  similar  instructions ;  but  the  conflict  of  arms 
that  had  already  taken  place,  between  the  times  of 
their  respective  appointments  and  the  date  of  their 
meeting,  had  materially  changed  the  posture  of  af 
fairs.  Powers  of  a  revolutionary  nature  had  been 
cast  upon  them,  by  the  force  of  circumstances ;  and 
when  they  finally  resolved  to  take  the  field,  the 
character  of  those  powers,  as  understood  and  acted 
upon  by  themselves,  is  illustrated  by  the  commission 
wliich  they  issued  to  their  General-m-chief,  which 
embraced  in  its  scope  the  whole  vast  object  of  "the 
defence  of  American  liberty,  and  the  repelling  every 
hostile  mvasion  thereof,"  by  force  of  arms,  and  "by 
the  rules  and  discipline  of  war,  as  herewith  given." 

It  is  obvious,  therefore,  that,  at  the  time  when  the 
first  contmental  army  was  to  be  formed,  the  powers 
of  the  national  government  were  very  broad,  al- 
though vague  and  uncertain.  There  seems  to  have 
been  no  reason,  upon  principle,  why  they  should  not 
have  adopted  decrees,  to  be  executed  by  their  own 


Ch.  m.]   THE  EEVOLUTIONAEY  GOVERNMENT.      63 

immediate  agents,  and  by  their  own  direct  force. 
But  a  practical  difficulty  embarrassed  and  almost 
annulled  this  theoretical  and  rightfid  power.  The 
government  of  the  Congress  rested  on  no  definite, 
legislative  faculty.  ^¥hen  they  came  to  a  resolution, 
or  vote,  it  constituted  only  a  voluntary  compact,  to 
which  the  people  of  each  colony  pledged  themselves, 
by  their  delegates,  as  to  a  treaty,  but  which  depended 
for  its  observance  entii'ely  on  the  patriotism  and 
good  faith  of  the  colony  itself.  No  means  existed  of 
compellmg  obedience  from  a  delinquent  colony,  and 
the  government  was  not  one  which  could  operate 
dkectly  upon  individuals,  unless  it  assumed  the 
full  exercise  of  powers  derived  from  the  revolution- 
ary objects  at  which  it  aimed.  These  powers  were 
not  assumed  and  exercised  to  their  full  extent,  for 
reasons  peculiar  to  the  situation  of  the  country,  and 
to  the  character,  habits,  and  feelings  of  the  people. 

The  people  of  the  colonies  had  indeed  sent  their 
delegates  to  a  Congress, .  to  consult  and  determine 
upon  the  measures  necessary  to  be  adopted,  in  order 
to  assert  and  mamtain  their  rights.  But  they  had 
never  been  accustomed  to  any  machuiery  of  govern- 
ment, or  legislation,  other  than  that  existing  in  their 
own  separate  jurisdictions.  They  had  imparted  to 
the  Congress  no  proper  legislative  authority,  and  no 
civil  powers,  except  those  of  a  revolutionary  charac- 
ter. This  revolutionary  government  was  therefore 
enthely  without  civil  executive  officers,  fundamental 
laws,  or  control  over  individuals ;  and  the  union  of 
the  colonies,  so  far  as  a  union  had  taken  place,  was 


64  THE  FEDEKAL  CONSTITUTION.  [Book  I 

one  from  which  any  colony  conld  withdraw  at  any 
time,  without  violating  any  legal  obligation.  ^ 

In  addition  to  this,  the  popular  feelmg  on  the 
subject  of  the  grievances  existing,  and  of  the  meas- 
ures that  ought  to  be  taken  for  redress,  was  quite 
diiferent  in  the  different  colonies,  before  the  Declara- 
tion of  Independence  was  adopted.  The  leading 
patriotic  or  Wliig  colonies  made  common  cause  with 
each  other,  with  great  spirit  and  energy,  and  the 
more  lukewarm  followed,  but  with  unequal  steps.'' 
Virginia  had,  upon  the  whole,  less  to  complain 
of  than  Massachusetts ;  but  she  adopted  the  whole 
quarrel  of  her  Northern  sister,  mth  the  fimmess  of 
her  Wasliington  and  the  ardor  of  her  Henry.  New 
York,  on  the  other  hand,  for  a  considerable  period, 
and  do"\\Ti  to  the  month  of  January,  1775,  stood 
nearly  divided  between  the  "Whigs  and  the  Tories, 
and  did  not  choose  its  delegates  to  the  second  Con- 
gress until  the  20th  of  April,  —  twenty  days  only 
before  that  body  assembled.^ 


1  Mr.  Jefferson  once  said  to  my  tion  association  formed  by  the  first 
kinsman,  Mr.  George  Ticknor,  that  Congress,  and  also  declined  to  ap- 
when  they  had  any  doubtful  and  point  delegates  to  the  second  Con- 
difficult  measure  to  carry  in  this  gress,  which  was  to  assemble  in 
Congress,  they  counted  the  four  May.  They  adopted,  however,  a 
New  England  colonies,  and  Vir-  list  of  grievances,  which  was  sub- 
ginia,  as  sure;  and  then  they  looked  stantially  the  same  with  that  which 
round  to  sec  where  they  could  get  had  been  put  forth  by  the  first 
two  more,  to  make  the  needful  ma-  Congress.  Towards  the  close  of 
jority.  the  session,  in  the  absence  of  some 

2  The  General  Assembly  of  New  of  the  patriotic  members,  petitions 
York  met  on  the  10th  of  January,  to  the  King  and  to  Parliament  were 
1775,  and  by  a  small  majority  re-  adopted,  which  differed  somewhat 
fused  to  approve  of  the  non-importa-  from  the    principles  contained  in 


Ch   ni.]        THE  EEVOLUTIOXARY  GOVEENAIENT.  65 

One  of  the  most  strildng  illustrations,  both  of  the 
character  of  the  revolutionary  government  and  of 
the  state  of  the  coimtry,  is  presented  by  the  proceed- 
ings respecting  the  Loyalists,  or,  as  they  were  called, 
the  Tories.  This  is  not  the  place  to  consider  whether 
the  American  Loyalists  were  right  or  wrong  in  ad- 
hering to  the  crown.  Ample  justice  is  likely  to  be 
done,  m  American  liistory,  to  the  characters  and  mo- 
tives of  those  among  them  whose  characters  and 
motives  were  pure.  From  a  sense  of  duty,  or  from 
cupidity,  or  from  some  motive,  good  or  bad,  they 
made  their  election  to  adhere  to  the  public  enemy; 
and  they  were,  therefore,  rightfully  classed,  accord- 
ing to  their  personal  activity  and  hnportance,  among 
the  enemies  of  the  country,  by  those  whose  business 
it  was  to  conduct  its  affairs  and  to  fight  its  battles. 
General  Washington  was,  at  a  very  early  period,  of 
opinion,  that  the  most  decisive  steps  ought  to  be 
taken  with  these  persons ;  and  he  seems  at  first  to 
have  acted  as  if  it  belonged,  as  in  fact  it  did  properly 
belong,  to  the  commander  of  the  continental  forces 
to  determme  when  and  how  they  should  be  arrested. 
He  first  had  occasion  to  act  upon  the  subject  in 
November,  1775,  when  he  sent  Colonel  Palfcey,  one 


their    list  of  grievances,   and    in  and  appointed  delegates  to  the  sec- 

which   they  disapproved   "  of  the  ond    Congress,    "  to   concert    and 

violent    measures    that   had    been  determine   upon    such   matters   as 

pursued  in  some  of  the  colonies."  shall  be  judged  most  advisable  for 

But  the  people  of  New  York  gen-  the   preservation   and    reestablish- 

erally  conformed  to  the  non-impor-  ment  of  American  rights  and  privi- 

tation  agreement ;  and  on  the  20th  leges."     Pitkin's   History  of  tho 

of  April  they  met  in   convention  United  States,  I.  324. 

VOL.    I.  9 


66  THE  FEDERAL  CONSTITUTION.  [Book  I. 

of  his  aids,  iato  New  Hampshire,  with  orders  to 
seize  every  officer  of  the  royal  government,  who  had 
given  proofs  of  an  unfriendly  disposition  to  the 
American  cause,  and  when  he  had  secured  them,  to 
take  the  opinion  of  the  P]X)vincial  Congress,  or  Com- 
mittee of  Safety,  in  what  manner  to  dispose  of  them 
in  that  Province.-^ 

Early  m  the  month  of  January,  1776,  General 
WashiQgton  was  led  to  suppose  that  the  enemy  were 
about  to  send  firom  Boston  a  secret  expedition  by 
water,  for  the  purpose  of  taking  possession  of  the 
city  of  New  York  ;  and  it  was  believed  that  a  body 
of  Tories  on  Long  Island,  where  they  were  numer- 
ous, were  about  rismg,  to  join  the  enemy's  forces  on 
their  arrival.  While  Washington  was  deliberating 
whether  he  should  be  warranted  in  sending  an  expe- 
dition to  check  this  movement  and  to  prevent  the 
city  from  falling  mto  the  hands  of  the  enemy,  with- 
out first  applying  to  Congress  for  a  special  authority, 
he  received  a  letter  from  Major-General  Charles  Lee, 
offering  to  go  into  Connecticut,  to  raise  volunteers, 
and  to  march  to  the  neighborhood  of  New  York,  for 
the  pui'pose  of  seeming  the  city  and  suppressing  the 
anticipated  insurrection  of  the  Tories.^     He  was  in- 

1  "I  do  not  mean,"  the  orders  the   like  order  in   respect  to   the 

continued,  "that  they  should  be  Tories  in  Portsmouth ;  but  the  day 

kept  in  close  confinement.    If  either  is  not  far  off,  when  they  will  meet 

of  these  bodies  should   incline  to  with  this,  or  a  worse  fate,  if  there 

send  them  to  any  interior  towns,  is  not  a  considerable  reformation 

upon  their  parole  not  to  leave  them  in  their  conduct."     "Writings  of 

until  they  are  released,  it  will  meet  Washington,  III.  158,  159. 
with   my  concurrence.      For  the  ^  Writings  of  Washington,  III. 

present,  I  shall  avoid  giving  you  230,  note. 


Ch.  m.J        THE  EEVOLUTIONAKY  GOVERmiENT.  67 

clined  to  adopt  Lee's  suggestion,  but  doubted  whether 
he  had  power  to  disarm  the  people  of  an  entire  dis- 
trict, as  a  military  measure,  without  the  action  of  the 
civil  authority  of  the  Province.  Upon  this  point,  he 
consulted  Mr.  John  Adams,  who  was  then  attending 
the  Provincial  Congress  of  Massachusetts.  Mr.  Adams 
gave  it,  unhesitatingly,  as  his  clear  opinion,  that  the 
commission  of  the  Commander-in-chief  extended  to 
the  objects  proposed  m  General  Lee's  letter ;  and  he 
reminded  General  Washington,  that  it  vested  in  him 
full  power  and  authority  to  act  as  he  should  tlimk 
for  the  good  and  welfare  of  the  service.-^  Lee  was 
thereupon  authorized  to  raise  volunteers  and  to  pro- 
ceed to  the  city  of  New  York,  which  he  was  in- 
structed to  prevent  from  falling  uito  the  hands  of  the 
enemy,  by  putting  it  iato  the  best  posture  of  defence 
and  by  disarming  all  persons  upon  Long  Island  and 
elsewhere,  (and,  if  necessary,  by  otherwise  secur- 
ing them,)  whose  conduct  and  declarations  had  ren- 
dered them  justly  suspected  of  designs  unfriendly  to 
the  views  of  the  Congress.^  yit  the  same  time.  Gen- 
eral Washington  wrote  to  the  Committee  of  Safety 
of  New  York,  informing  them  of  the  instructions 
which  he  had  given  to  General  Lee,  and  requesting 
their  assistance;  but  without  placing  Lee  imder 
their  authority.^ 

It  happened,  that  at  this  time,  while  Wasliington 

1  Writings  of  Washington,  III.  2  Writings  of  Washington,  III 

230,  note.      See  also   Marshall's      230. 
Life  of  Washington,  II.  285-287.  3  Ibid.,  note. 


68 


THE  FEDERAL  CONSTITUTION. 


IBOOK  I. 


was  considering  the  expediency  of  sending  this  ex- 
pedition, the  Congress  had  under  consideration  the 
subject  of  disanning  the  Tories  m  Queen's  County, 
Long  Island,  where  the  ^Deople  had  refused  to  elect 
members  to  the  Provincial  Convention.^  Two  bat- 
talions of  nmiute-men  had  been  ordered  to  enter  that 
comity,  at  its  opposite  sides,  on  the  same  day,  and 
to  disarm  every  mhabitant  who  had  voted  against 
choosmg  members  to  the  Convention.^  A  part  of 
these  orders  were  suddenly  countermanded,  and  iu 


^  Journals  of  Congress,  II.  7-9. 
January  3,  1776.  Congress  had, 
on  the  2d  of  January,  passed  re- 
solves, recommending  to  the  differ- 
ent assemblies,  conventions,  and 
committees  or  councils  of  safety, 
to  restrain  the  Tories,  and  had  de- 
clared that  they  ought  to  be  dis- 
armed, and  the  more  dangerous  of 
them  kept  in  custody.  For  this 
purpose,  the  aid  of  the  continental 
troops  stationed  in  or  near  the  re- 
spective colonies  was  tendered  to 
the  local  authorities.  Journals, 
II.  4,  5. 

2  The  resolves  of  the  Congress 
on  this  subject  amounted  to  an  out- 
lawry of  the  persons  against  whom 
they  were  directed.  They  were 
introduced  by  a  pileamble,  reciting 
tlie  disaffection  of  a  majority  of  the 
inhabitants  of  Queen's  County, 
evinced  by  their  refusal  to  elect 
deputies  to  the  convention  of  the 
colony,  by  their  public  declaration 
of  a  design  to  remain  inactive  spec- 
tators of  the  contest,  and  their  gen- 
eral want  of  public  spirit ;  and  de- 


claring, that  "  those  who  refuse  to 
defend  their  country  should  be  ex- 
cluded from  its  protection,  and  pre- 
vented from  doing  it  injury."  The 
first  resolve  then  proceeded  to  de- 
clare that  all  the  inhabitants  of 
Queen's  County  named  in  a  list 
of  delinquents  published  by  the 
Convention  of  New  York  be  put 
out  of  the  protection  of  the  United 
Colonies,  that  all  trade  and  inter- 
course with  them  cease,  and  that 
no  inhabitant  of  that  county  be 
permitted  to  travel  or  abide  in  any 
part  of  the  United  Colonies,  out 
of  that  county,  without  a  certificate 
from  the  Convention  or  Committee 
of  Safety  of  New  York,  setting 
forth  that  such  inhabitant  is  a 
friend  to  the  American  cause,  and 
not  of  the  number  of  those  who 
voted  against  sending  deputies  to 
the  Convention  ;  and  that  any  in- 
habitant found  out  of  the  county, 
without  such  certificate,  be  ap- 
prehended and  imprisoned  three 
months.  The  second  resolve  de- 
clared that  any  attorney  or  lawyer 


Ch.  ni.]       THE  EEVOLUTIONAEY  GOVERNJIENT. 


69 


place  of  the  miiiute-men  from  Connecticut,  tlii-ee 
companies  were  ordered  to  be  detaHed  for  this  ser- 
vice from  the  command  of  Lord  Stiilmg.  This 
change  in  the  origmal  plan  was  made  on  the  10th 
of  January;  and  when  Washmgton  received  notice 
of  it  from  Lee,  he  seems  to  have  miderstood  it 
as  an  abandonment  of  the  whole  scheme  of  the 
expedition,  —  a  course  which  he  deeply  regretted.^ 
He  thought,  that  the  period  had  arrived  when 
nothmg  less  than  the  most  decisive  measui-es  ought 
to   be   pui'sued;   that   the  enemies   of  the   country 


who  should  commence,  prosecute, 
or  defend   any  action  at   law,  for 
any  inhabitant  of  Queen's  County 
who  voted  against  sending   depu- 
ties to  the  Convention,  ought  to  be 
treated  as  an  enemy  to  the  Ameri- 
can  cause.      The    fourth   resolve 
directed    that    Colonel    Nathaniel 
Heard,    of    Woodbridge,    N.    J., 
should  march,  with  five  or  six  hun- 
dred  minute-men,  to  the  western 
part  of  Queen's  County,  and  that 
Colonel  Waterbury,  of  Stamford, 
Connecticut,  with  the  same  num- 
ber of  minute-men,  march  to   the 
eastern  side;   that  they  confer  to- 
gether and  endeavor  to  enter  the 
county  on  the  same  day,  and  that 
they  proceed  to  disarm  every  per- 
son in  the  county  who  voted  against 
sending  deputies  to  the  Convention, 
and  cause  them  to  deliver  up  their 
arms  and  ammunition  on  oath,  and 
confine  in  safe  custody,  until  further 
orders,  all  those  who  should  refuse 
compliance.     These  resolves  were 
passed  on  the  3d  of  January,  1776, 


and  were  reported  by  a  committee 
on  the  state  of  New  York.  On 
the  10th  of  January,  on  account  of 
"  the  great  distance  from  Colonel 
Heard  to  Colonel  Waterbury,  and 
the  difficulty  of  cooperathig  with 
each  other  in  their  expedition  into 
Queen's  County,"  Congress  di- 
rected Lord  Stirling  to  furnish 
Colonel  Heard  with  three  com- 
panies from  his  command,  who 
were  to  join  Colonel  Heard  with 
his  minute-men,  and  proceed  imme- 
diately on  the  expedition ;  and  also 
directed  Heard  to  inform  Water- 
bury that  his  services  would  not  be 
required.     Journals,  H.  21. 

1  He  received  this  impression 
from  General  Lee,  who  wrote  on 
the  16th  of  January  and  informed 
him  that  Colonel  Waterbury  had 
"received  orders  to  disband  his 
regiment,  and  the  Tories  are  to 
remain  unmolested  till  they  are 
joined  by  the  King's  assassins.*" 
Sparks's  Life  of  Gouverneur  Mor 
ris,  L  75. 


70  THE  FEDERAL  CONSTITUTION.  [Book  1. 

were  sufficiently  numerous  on  the  other  side  of  the 
Atlantic,  and  that  it  was  highly  important  to  have 
as  few  internal  ones  as  possible.  But  supposing 
that  Congress  had  changed  their  determination,  he 
directed  Lee  to  disband  his  troops  so  soon  as  circum- 
stances would  in  his  judgment  admit  of  it.-^  Lee  was 
at  this  time  at  Stamford  in  Connecticut,  with  a  body 
of  about  twelve  himdred  men,  whom  he  had  raised 
in  that  colony,  preparing  to  march  to  New  York  to 
execute  the  different  pui-poses  for  which  he  had  been 
detached.  On  the  22d  of  January,  —  the  day  before 
the  date  of  General  Washington's  letter  to  him  di- 
rectmg  him  to  disband  his  forces,  —  he  had  written 
to  the  President  of  Congress,  urgmg  in  the  strongest 
terais  the  expediency  of  seizing  and  disarmmg  the 
Tories^ ^  and  he  immediately  communicated  to  Wash- 
ington the  fact  of  his  having  done  so.  Washington 
wrote  again  on  the  30th,  informing  Lee  that  General 
Clinton  had  gone  from  Boston  on  some  expedition 
Avith  four  or  five  hundred  men ;  that  there  was  rea- 
son to  believe  that  tliis  expedition  had  been  sent 
on  the  application  of  Tryon,  the  royal  Governor  of 
New  York,  who,  mth  a  large  body  of  the  mhab- 
itants,  would  probably  join  it ;  and  that  the  Tories 
ought,  therefore,  to  be  disarmed  at  once,  and  the 
principal  persons  among  them  seized.  He  also  ex- 
pressed the  hope  that  Congress  would  empower  Gen- 
eral Lee  to  act  confomiably  to  both  their  wishes ;  but 

1  Letter  to  General  Lee,  Janu-  ^  Marshall's  Life  of  Washing* 

ary  23,  1776,     Writings  of  Wash-      ton,  IL,  Appendix,  xvii. 
ington,  in.  255. 


Ch.  m.]        THE  REVOLUTIONARY  GOVERNMENT.  71 

that,  if  they  should  order  differently,  theu-  dii-ections 
must  be  obeyed.^ 

General  Washington  was  mistaken  in  supposing 
that  Congress  had  resolved  to  abandon  the  expedi- 
tion against  the  Tories  of  Queen's  Comity.  That 
expedition  had  actually  penetrated  the  comity,  under 
Colonel  Heard,  who  had  arrested  nmeteen  of  the 
principal  inhabitants  and  conducted  them  to  Phila- 
delphia. Congress  dkected  them  to  be  sent  to  New 
York,  and  delivered  to  the  order  of  the  Convention 
of  that  Colony,  until  an  mquiry  could  be  instituted 
by  the  Convention  into  their  conduct,  and  a  report 
thereon  made  to  Congress.^ 

This  destination  of  the  prisoners  had  become  ne- 
cessary, in  consequence  of  th^  local  fears  and  jealous- 
ies excited  by  the  approach  of  General  Lee  to  the  city 
of  New  York,  at  the  head  of  a  force  designed  to  pre- 
vent it  from  fallmg  mto  the  possession  of  the  enemy. 
The  mhabitants  of  the  city  were  not  a  little  alarmed 
at  the  idea  of  its  becoming  a  post  to  be  contended 
fbr ;  and  the  Committee  of  Safety  wrote  to  General 
Lee  earnestly  deprecatmg  his  approach.^  Lee  re- 
plied to  them,  and  continued  his  march,  inclosing 
their  letter  to  Congress.  It  was  received  in  that 
body  on  the  26th,  and  a  committee  of  three  members 
was  immediately  appointed  to  repak  to  New  York, 
to  consult  and  advise  "with  the  Council  of  Safety  of 

1  Letter  to  General  Lee,  Janu-  3  Sparks's  Life  of  Gouverneur 

ary  31,  177G.     Writings  of  Wash-  Morris,  L  75,  76.     They  wished 

ington,  in.  275.  to  "  save  appearances  with  the  [ene- 

~  February  6,  1776.     Journals,  my's]  ships  of  war,  till  at  least  the 

n.  51.  month  of  March." 


7a  THE  FEDERAL  CONSTITUTION.  [Book  I 

the  Colony,  and  with  General  Lee,  respectmg  the 
defence  of  the  city.-^  The  Provincial  Congress  of 
New  York  were  in  session  at  the  time  of  the  arrival 
of  this  connnittee,^  and,  m  consequence  of  the  temper 
existing  in  that  body  and  in  the  local  committees, 
the  Contmental  Congress  found  themselves  obliged 
to  recede  from  the  course  which  they  had  taken  of 
disarming  the  Tories  of  Queen's  County  by  their  own 
action,  and  to  submit  the  whole  subject  agam  to  the 
colonial  authorities  everywhere,  by  a  mere  recommen- 
dation to  them  to  disarm  all  persons,  withm  their 
respective  limits,  notoriously  disaffected  to  the  Amer- 
ican cause.^ 

Thus,  after  havuig  resolved  on  the  peiforaiance 
of  a  high  act  of  sovereignty,  which  was  entirely 
withm  the  true  scope  of  their  o\vn  powers,  and  emi- 
nently necessary,  the  Congress  was  obliged  to  con- 
tent itself  with  a  recommendation  on  the  subject  to 
the  colonial  authorities ;  not  only  because  it  felt  itself, 
as  a  government,  far  from  secure  of  the  popular  co- 
operation m  many  parts  of  the  country,  but  because 
it  had  not  finally  severed  the  political  tie  which  had 
bound  the  country  to  the  crown  of  Great  Britain, 
and  because  it  had  no  ci^dl  machinery  of  its  own, 
through  which  its  operations  could  be  conducted. 

Another  topic,  which  illustrates  the  character  of 
the  early  revolutionary  government,  is  the  entire 
absence,  at  the  period  now  under  consideration,  of  a 


14,    1776.     Journals, 


1  January  26,  177S. 

Journals, 

3  March 

II.  39. 

II.  91. 

3  January  30. 

Ch.  in.]        THE  EEVOLUTIONARY  GOVERNMENT.  73 

proper  national  tribunal  for  the  determination  of 
questions  of  Prize ;  —  a  want  wliich  gave  General 
Washington  great  trouble  and  embarrassment,  dur- 
ing his  residence  at  Cambridge  and  for  some  time 
afterwards.  As  this  subject  is  connected  with  the 
origm  of  the  American  Nav}%  a  brief  account  may 
here  be  given  of  the  commencement  of  naval  opera 
tions  by  the  United  Colonies. 

^Vlien  General  Washington  anived  at  Cambridge, 
no  steps  had  been  taken  by  the  Continental  Congress 
towards  the  employment  of  any  naval  force  what- 
ever. In  June,  1775,  two  small  schooners  had  been 
fitted  out  by  Rhode  Island,  to  protect  the  waters  of 
that  Colony  from  the  depredations  of  the  enemy; 
and  in  the  same  month,  the  Provincial  Congress  of 
Massachusetts  resolved  to  provide  six  armed  vessels ; 
but  none  of  them  were  ready  in  the  month  of 
October.-^  In  the  early  part  of  that  month,  the  first 
movement  was  made  by  the  Continental  Congress 
towards  the  employment  of  any  naval  force.  Gen- 
eral Washmgton  was  then  directed  to  fit  out  two 
armed  vessels,  "svith  all  possible  despatch,  to  sail  for 
the  mouth  of  the  St.  Lawrence,  m  order  to  mtercept 
certaui  ships  from  England  bound  to  Quebec  with 
powder  and  stores.  He  was  to  procui'e  these  vessels 
from  the  government  of  Massachusetts.^  The  au- 
thorities of  Massachusetts  had  then  made  no  such 


1  Letter  of  General  Washington      1775.     Journals  of  Congress,  II 
to  the  President  of  Congress.  197. 

2  Resolve    passed     October     5, 

VOL.    I.  10 


u 


THE  TEDEEAL  CONSTITUTION. 


[Book  I. 


provision  ;  but  in  the  latter  part  of  August,  General 
Washington  had,  on  the  broad  authority  of  his  com- 
mission, proceeded  to  fit  out  six  armed  schooners,  to 
cruise  in  the  waters  of  Massachusetts  Bay,  so  as  to 
mtercept  the  enemy's  supplies  coming  into  the  port 
of  Boston.  One  of  them  sailed  m  September,  and 
in  the  course  of  a  few  weeks  they  were  all  cruis- 
mg  between  Cape  Ann  and  Cape  Cod.^ 

On  the  17th  of  September,  1775,  the  to^vvn  of  Fal- 
mouth in  Massachusetts  (now  Portland  in  Maine) 
was  burnt  by  the  enemy.  This  act  stimulated  the 
Continental  Congress  to  order  the  fittmg  out  of  two 
armed  vessels  on  the  26th  of  October,  and  of  two 


^  These  vessels  were  fitted  out 
from  the  ports  of  Salem,  Beverly, 
Marblehead,  and  Plymouth.  They 
were  officered  and  manned  chiefly 
by  sea-captains  and  sailors  who 
happened  to  be  at  that  time  in  the 
army.  They  sailed  under  instruc- 
tions from  General  Washington, 
to  take  and  seize  all  vessels  in 
the  ministerial  service,  bound  into 
or  out  of  Boston,  having  soldiers, 
arms  and  ammunition,  or  provis- 
ions on  board,  and  to  send  them 
into  the  nearest  port,  under  a  care- 
ful prize-master,  to  wait  his  further 
directions.  The  first  person  com- 
missioned in  this  way  by  the  Com- 
mander-in-chief was  Captain  Nich- 
olas Broughton  of  Marblehead, 
who  sailed  in  (he  schooner  Han- 
nah, fitted  out  at  Beverly ;  and  in 
his  instructions  he  was  described 
as  "  a  captain  in  the  army  of  the 
United  Colonies  of  North  Ameri- 
ca," and  was  directed  to  take  the 


command  of  "  a  detachment  of  said 
army,  and  proceed  on  board  the 
schooner  Hannah,  lately  fitted  out, 
&c.  at  the  continental  expense." 
Another  of  these  vessels,  called  the 
Lee,  was  commanded  by  Captain 
John  Manly.  The  names  of  three 
others  of  them  were  the  Harrison, 
the  Washington,  and  the  Lynch. 
The  name  of  the  sixth  vessel  is  not 
known,  but  the  names  of  the  four 
other  captains  were  Selman,  INIar- 
tindale,  Coit,  and  Adams.  (Writ- 
ings of  Washington,  HL  516.) 
When  Washington  received  dire(?- 
tions  from  the  President  of  Con- 
gress to  send  two  vessels  to  the 
mouth  of  the  St.  Lawrence,  he 
wrote,  on  the  12th  of  October,  that 
one  of  these  vessels  was  then  out, 
and  that  two  of  them  would  be  de 
spatched  as  directed,  immediately 
(Ibid.,  III.  124.)  In  the  course  of 
a  few  weeks,  they  were  all  out. 


Ch.  m.]       THE  KEVOLUTIONARY  GOVERNMENT.  75 

others,  on  the  30th.  It  also  stunulated  the  Massa- 
chusetts Assembly  to  issue  letters  of  marque  and 
reprisal,  and  to  pass  an  act  establishing  a  court  to 
try  and  condemn  all  captures  made  from  the  en- 
emy, by  the  privateers  and  armed  vessels  of  that 
Colony. 

In  the  autumn  of  this  year,  therefore,  there  were 
two  classes  of  armed  vessels  cruising  in  the  waters 
of  Massachusetts  :  one  consisting  of  those  sailing 
under  the  contmental  authority,  and  the  other  con- 
sistmg  of  those  sailmg  under  the  authority  of  the 
Massachusetts  Assembly.  Captui-es  were  made  by 
each,  and  some  of  those  sailing  under  the  continen- 
tal authority  were  quite  successful.  Captain  Manly, 
commanding  the  Lee,  took,  in  the  latter  part  of 
November,  a  valuable  prize,  with  a  large  cargo  of 
arms,  ammunition,  and  military  tools ;  and  several 
other  captiu'cs  followed  before  any  provision  had 
been  made  for  their  condemnation,  —  a  business 
which  was  thus  throAvn  entirely  upon  the  hands  of 
General  Washington. 

The  court  established  by  the  Legislature  of  Massa- 
chusetts, at  its  session  in  the  autumn  of  1775,  for 
the  trial  and  condemnation  of  all  captures  from  the 
enemy,  was  enabled  to  take  cognizance  only  of  cap- 
tures made  by  vessels  fitted  out  by  the  Province,  or 
by  citizens  of  the  Provuice.  As  the  cruisers  fitted  out 
at  the  contmental  expense  did  not  come  under  tliis 
law.  General  Wasliington  early  in  November  called 
the  attention  of  Congress  to  the  necessity  of  estab- 
lishing a  court  for  the  trial  of  prizes  made  by  con- 


76  TEffi  FEDERAL  CONSTITUTION.  [Book  I 

tinental  authority.^  On  the  25tli  of  November,  the 
Congress  passed  resolves  orclermg  all  trials  of  prizes 
to  be  held  in  the  coiu't  of  the  colony  into  which 
they  should  be  brought,  mth  a  right  of  appeal  to 
Congress.^  But  these  resolves  do  not  seem  to  have 
been,  for  a  considerable  period  of  time,  commimi- 
cated  to  General  Washmgton  ;  for,  during  the 
months  of  November,  December,  and  January,  he 
supposed  it  to  be  necessaiy  for  him  to  attend  per- 
sonally to  the  adjudication  of  prizes  made  by  con- 
tinental vessels,^  and  it  was  not  until  the  early  part 
of  February  that  the  receipt  of  the  resolves  of  Con- 
gress led  to  a  resort  to  the  jurisdiction  of  the  ad- 
miralty court  of  Massachusetts.  Wlien,  however, 
this  was  done,  an  irreconcilable  difference  was  fomid 
to  exist  between  the  resolves  of  Congress  and  the 
law  of  the  Colony  respecting  the  proceedings ;  the 
trials  were  stopped  for  a  long  time,  to  enable  the 
General  Court  of  Massachusetts  to  alter  theii-  law, 
so  as  to  make  it  conform  to  the  resolves  ;    and  in 


^  Letter  to  the  President  of  Con-  relative  to  captures ;  saying,  "  You 

gress,  November  11,  1775.     Writ-  cannot  conceive  how  I  am  plagued 

ings  of  Washington,  III.  154.  on  this  head,  and  how^  impossible 

2  Journals,  I.  260.  it  is  for  me  to  hear  and  determine 

3  On  the  4th  of  December,  he  upon  matters  of  this  sort,  when  the 
repeated  his  former  recommenda-  facts,  perhaps,  are  only  to  be  as- 
tion  to  the  President  of  Congress.  certained  at  ports  forty,  fifty,  or 
(Writings  of  Washington,  III.  more  miles  distant,  without  bring- 
184.)  On  the  2Cth  of  December,  ing  the  parties  here  [Cambridge] 
he  wrote  to  Richard  Henry  Lee,  at  great  trouble  and  expense.  At 
in  Congress,  begging  him  to  use  any  rate,  my  time  will  not  allow 
his  influence  in  having  a  court  of  me  to  be  a  competent  judge  of  this 
admiralty  or  some  power  appointed  business."     Ibid.,  III.  217. 

to  hear  and  determine  all  matters 


Ch.  in.j   THE  KEVOLUTIONARY  GOVEKNMENT.       77 

the  mean  while,  many  of  the  captors,  weary  of  the 
law's  delay,  appHed,  mthont  waitmg  for  the  decis- 
ions, for  leave  to  go  away,  which  General  Washmg- 
ton  granted.^  As  late  as  the  25th  of  April,  1776, 
there  had  been  no  trials  of  any  of  the  prizes  bronght 
into  Massachusetts  Bay.  At  that  date.  General 
Washington  wrote  to  the  President  of  Congress, 
from  New  York,  that  some  of  the  vessels  which  he 
had  fitted  out  were  laid  up,  the  crews  being  dissatis- 
fied because  they  could  not  obtain  theu"  prize-money ; 
that  he  had  appealed  to  the  Congress  on  the  subject ; 
and  that,  if  a  summaiy  way  of  proceeding  were  not 
resolved  on,  it  would  be  impossible  to  have  the  con- 
tinental vessels  manned.  At  tliis  time  Captam  Manly 
and  his  crew  had  not  received  their  share  of  the  val 
uable  prize  taken  by  them  in  the  autumn  previous.^ 

Another  remarkable  defect  in  the  revolutionary 
government  was  found  in  the  mode  in  wliich  it  im- 
dertook  to  supply  the  means  of  defraying  the  public 
expenses.  It  was  a  government  entu'ely  without  rev- 
enues of  any  kind ;  for,  in  constituting  the  Congress, 
the  colonies  had  not  clothed  their  delegates  mth 
power  to  lay  taxes,  or  to  establish  imposts.  At  the 
time  when  hostilities  were  actually  commenced,  the 
connnerce  of  the  country  was  almost  totally  annihi- 
lated; so  that  if  the  Congress  had  possessed  pow- 
er to  derive  a  revenue  from  commerce,  little  could 

1  Letter  to  the  President  of  Con-      February   10,    1776.       Ibid.,  III. 
gress,  February  9,   1776.      Ibid.,      284. 
m.  282.     Letter  to  Joseph  Reed,  ^  Ibid.,  III.  370. 


78  THE  FEDERAL  CONSTITUTION.  [Book  1. 

have  been  obtained  for  a  long  period  after  the  com 
mencement  of  the  war.  But  the  power  did  not  ex- 
ist; money  in  any  considerable  quantity  could  not 
be  borrowed  at  home ;  the  expedient  of  foreign  loans 
had  not  been  suggested;  and  consequently  the  only 
remaining  expedient  to  which  the  Congress  could 
resort  was,  like  other  governments  similarly  situated, 
to  issue  paper  money.  The  mode  in  which  this  was 
undertaken  to  be  done  was,  in  the  fii'st  instance,  to 
issue  two  millions  of  Spanish  milled  dollars,  in  the 
form  of  bills,  of  various  denominations,  from  one 
dollar  to  eight  dollars  each,  and  a  few  of  twenty 
dollars,  designed  for  circulation  as  ciu'rency.  The 
whole  number  of  bills  which  made  up  the  sum 
of  S  2,000,000  was  403,800.^  The  next  emission 
amounted  to  ^1,000,000,  in  bills  of  thii-ty  dollars 
each,  and  was  ordered  on  the  25  th  of  July.^  When 
the  bills  of  the  fii'st  emission  were  prepared,  it  would 
seem  to  have  been  the  practice  to  have  them  signed 
by  a  committee  of  the  members  ;  but  this  was  found 
so  inconvenient,  from  the  length  of  tune  during 
which  it  withdrew  the  members  from  the  other  busi- 
ness of  Congress,  that,   when  the  second  emission 

1  This    was   the    emission    or-  Continental  Currency. 

dered  on  the  23d  of  June,  1775.  No.  Dollars. 

There    were  forty-nine  thousand  This  Bill  entitles  the  Bearer  to 

bills  of   each  denomination   from  receive 

one  dollar  to  eight  dollars,  inclu-  Spanish    milled    Dollars,    or    the 

s[\e,  3,nA  eleven  thousand  eight  hu7i-  value   thereof  in  Gold   or  Silver, 

drcd  bills  of  the   denomination  of  according  to  the  Resolutions  of  the 

twenty  dollars.     The  form  of  the  Congress,  held  at  Philadelphia  on 

bills    was    as   follows    (Journals,  the  10th  day  of  May,  A.  D.  1775 
r    i2fi)  :  —  ^  Journals,  I.  177. 


Ch.  in.]       THE  REVOLUTIONARY  GOVERNMENT.  79 

was  ordered,  a  committee  of  twenty-eight  citizens  of 
Philadelpliia  was  appointed  for  the  purpose,  and 
the  bills  were  ordered  to  be  signed  by  any  two  of 
them.-^  At  this  time,  no  continental  Treasui'ers  had 
been  appointed.^ 

Such  a  clumsy  machinery  was  poorly  adapted  to 
the  supply  of  a  currency  demanded  by  the  pressing 
wants  of  the  army  and  of  the  other  branches  of  the 
pubHc  service.  The  signers  of  the  bills  were  ex- 
tremely dilatory  in  their  work.  In  September,  1775, 
the  paymaster  and  commissary,  at  Cambridge,  had 
not  a  single  dollar  m  hand,  and  they  had  strained 
their  credit,  for  the  subsistence  of  the  army,  to  the 
utmost ;  the  greater  part  of  the  troops  were  m  a  state 
not  far  fi:om  mutmy,  in  consequence  of  the  deduction 
which  had  been  rnade  from  their  stated  allowance; 
and  there  w^as  imminent  danger,  if  the  evil  were  not 
soon  remedied,  and  greater  punctuality  observed, 
that  the  army  would  absolutely  break  up.  In  No- 
vember, General  Wasliington  deemed  it  highly  de- 
sirable to  adopt  a  system  of  advanced  pay,  but  the 
unfortmiate  state  of  the  military  chest  rendered  it 
impossible.  There  was  not  cash  sufficient  to  pay 
the  troops  for  the  months  of  October  and  November. 
Through  the  months  of  December  and  January,  the 
signing  of  the  bills  did  not  keep  pace  with  the  de- 
mands of  the  army,  notwithstanding  General  AA^ash- 
ington's  urgent  remonstrances ;  and  in  February  his 

^  Journals,   I.  126,   177.      The      third  of  a  dollar  on  each  thousand 
igners  of  the  bills  were  allowed      of  the  bills  signed  by  them.      Ibid 
a  commission  of  one  dollar  and  one  ~  Ante,  p.  35. 


80  THE  FEDER^VL  CONSTITUTION.  [Book  I 

wants  became  so  pressing,  that  he  was  obliged  to 
borrow  twenty-five  thousand  pounds  of  the  Provuice 
of  Massachusetts  Bay,  m  order  that  the  recruiting 
service  might  not  totally  cease.-^ 

These  facts  show  significantly,  that,  before  the 
Declaration  of  Independence,  scarcely  any  progress 
had  been  made  towards  the  formation  of  a  national 
government  with  definite  powers  and  appropriate 
departments.  In  matters  of  judicature,  and  m  meas- 
ures requirmg  executive  functions  and  authority,  the 
Congress  were  obliged  to  rely  almost  entirely  upon 
the  local  mstitutions  and  the  local  civil  machinery  of 
the  difierent  colonies;  while,  in  all  military  affairs, 
the  very  form  of  the  revolutionary  government  was 
unfavorable  to  vigor,  despatch,  and  consistent  meth- 
od. There  were  also  causes  existing  in  the  temper 
and  feelhigs  of  many  of  the  members  of  that  govern- 
ment, both  before  and  after  the  Declaration  of  Inde- 
pendence, which,  at  times,  prevented  the  majority 
from  acting  •with  the  decision  and  energy  demanded 
by  the  state  of  their  afi'aii-s.  Many  excellent  and 
patriotic  men  in  the  Congress  of  1775-6,  wdiile 
they  concuiTed  fully  in  the  necessity  for  resistance 
to  the  measures  of  the  British  ministry,  and  had 
decided,  or  were  fast  deciding,  that  a  separation 
must  take  place,  still  entertamed  a  great  jealousy 
of  standing  armies.  This  jealousy  began  to  exhibit 
itself  veiy  soon  after  the  appointment  of  the  Com- 
mander-in-chief, and  was  never  wholly  without  influ- 

1  Writings  ofWashington,  III.  104,  Ifi?,  173,  178,283. 


Cn.  III.]        THE  REVOLUTIONARY  GOVERNMENT.  81 

ence  iii  the  proceedings  of  Congress  during  the  en- 
tire period  of  the  war.  It  led  to  a  degree  of  reliance 
upon  militia,  which,  in  the  situation  of  the  colonies, 
was  too  often  demonstrated  to  be  a  weak  and  fatal 
policy.^ 

1  Writings  of  Washington,  III.  some  member  proposed  to  insert  a 

278 ;  IV.  115  ;  V.  328,    Mr.  Sparks  clause  in  the  Constitution,  limiting 

has  preserved  an  anecdote,  which  the  army  of  the  United  States  to _^i'e 

shows    the    perpetuation    of    this  thousand  men.     General  Washing 

feeling  about  standing  armies,  and  ton,  who  was  in  the  chair,  observed 

evinces  also  that  Washington  pos-  that  he  should  not  object  to  such  a 

sessed  more  humor  than  has  been  clause,  if  it  were  so  amended  as  to 

generally  attributed   to  him.      In  provide  that  no  enemy  should  ever 

the  Convention    for    forming    the  presume  to  invade  the  United  States 

Constitution  of  the  United  States,  with  more  than  three  thousand. 


NOTE  TO  PAGE  51. 

ON    THE    DECLARATION    OF    INDEPENDENCE. 

The  Declaration  of  Independence  was  drawn  by  Thomas  Jefferson  ; 
and  the  circumstances  under  which  he  was  selected  for  this  honorable  and 
important  task  have  been  for  more  than  a  quarter  of  a  century  somewhat 
in  doubt,  and  that  doubt  has  been  increased  by  the  recent  publication  of  a 
part  of  the  Works  of  Mr.  John  Adams.  The  evidence  on  the  subject  is  to 
be  derived  chiefly  from  statements  made  by  both  of  these  eminent  persons 
in  their  memoirs,  and  in  a  letter  written  by  each  of  them.  We  have 
seen,  in  a  former  note,  that  in  1822  Mr.  Adams  declared,  that  had  it  not 
been  for  a  conversation  which  occurred  in  1775,  before  the  meeting  of  the 
Congress  of  that  year,  between  himself  and  his  Massachusetts  colleagues 
and  certain  of  the  Philadelphia  "  sons  of  liberty,"  in  which  the  Massa- 
chusetts members  were  advised  to  concede  precedence  to  Virginia,  from 
motives  of  policy,  and  but  for  the  principles,  facts,  and  motives  sug- 
gested in  that  conversation,  many  things  would  not  have  happened  which 
did  occur,  and  among  them,  that  Mr.  Jefferson  never  would  have  been  the 
author  of  the  Declaration  of  Independence.     In  regard  to  the  same  spccu- 

VOIi.    I.  11 


82  THE  FEDERAL  CONSTITUTION.  [Book  I. 

lation,  concerning  the  election  of  Washington  as  Commander-in-chief,  1 
have  ventured,  on  Mr.  Adams's  own  authority,  to  suggest  doubts  whether 
that  election  ought  now^  to  be  considered  to  have  turned  upon  motives 
which  Mr.  Adams  made  so  prominent  in  1822.  In  regard  to  the  author- 
ship of  the  Declaration  of  Independence,  I  shall  only  endeavor  to  state 
fairly  and  fully  the  conflicting  evidence,  in  order  that  the  reader  may 
judge  what  degree  of  weight  ought  to  be  assigned  to  the  cause,  icithout 
which  Mr.  Adams  supposed  Mr.  Jefferson  would  not  have  been  selected 
to  draft  it. 

Mr.  Jefferson,  as  it  appeared  when  his  writings  came  to  be  published 
in  1829,  wrote  in  1821,  when  at  the  age  of  seventy-seven,  a  memoir  of 
some  of  the  public  tra,nsactions  in  vi^hich  he  had  been  engaged.  At  this 
time,  he  had  in  his  possession  a  few  notes  of  the  debates  which  took 
place  in  Congress  on  the  subject  of  Independence,  and  which  he  made  at 
the  time.  These  notes  he  inserted  bodily,  as  they  stood,  in  his  memoir, 
and  they  are  so  printed.  (Jefferson's  Works,  I.  10-14.)  They  are 
easily  distinguishable  from  the  text  of  the  memoir,  but  they  do  not  appear 
to  throw  any  especial  light  upon  the  fact  now  in  controversy ;  although , 
as  Mr.  Jefferson,  in  1823,  when  writing  on  this  subject,  supported  his  rec- 
ollection by  "  written  notes,  taken  at  the  moment  and  on  the  spot,"  it  is 
proper  to  allow  that  those  notes  may  in  some  way  have  aided  his  memory, 
although  we  cannot  now  see  in  what  way  they  did  so..  He  made  this 
latter  reference  in  a  letter  which  he  wrote  to  Mr.  Madison,  in  reply  to 
the  statements  in  Mr.  Adams's  letter  to  Timothy  Pickering,  under  date 
of  August  G,  1832.     (Jefferson's  Works,  IV.  375,  376.) 

At  or  near  the  beginning  of  the  present  century,  Mr.  Adams,  then 
about  sixty-six,  wrote  an  autobiography,  which  has  recently  been  pub- 
lished [1850],  and  in  which  he  gave  an  account  of  the  authorship  of  the 
Declaration.  In  1822,  when  about  eighty-six,  Mr.  Adams  wrote  the 
letter  to  Mr.  Pickering,  which  called  forth  Mr.  Jefferson's  contradiction 
in  his  letter  to  Mr.  Madison,  under  date  of  August  30,  1823.  (Adams's 
Works,  II.  510-515.)  Mr.  Jefferson,  in  his  memoir  written  in  1821, 
states  simply  that  the  committee  for  drawing  the  Declaration  desired  him 
to  do  it ;  that  he  accordingly  wrote  it,  and  that,  being  approved  by  the 
committee,  he  reported  it  to  the  Congress  on  Friday,  the  28th  of  June, 
when  it  was  read  and  ordered  to  lie  on  the  table ;  and  that  on  Monday, 
the  1st  of  July,  the  Congress,  in  committee  of  the  whole,  proceeded  to 
consider  it.  "The  pusillanimous  idea,"  he  continues,  "that  we  had 
friends  in  England  worth  keeping  terms  with,  still  haunted  the  minds  of 
many.  For  this  reason,  those  passages  which  conveyed  censures  on  the 
people  of  England  were  struck   out,  lest  they  sliould  give  them  offence 


Ch.  ni.J   THE  EEVOLUTIONAEY  GOVERNMENT.      83 

The  clause,  too,  reprobating  the  enslaving  the  inhabitants  of  Africa, 
was  struck  out  in  complaisance  to  South  Carolina  and  Georgia,  who  had 
never  attempted  to  restrain  the  importation  of  slaves,  and  who,  on  the 
contrary,  wished  to  continue  it.  Our  Northern  brethren,  also,  I  believe, 
felt  a  little  tender  under  those  censures  ;  for  though  their  people  had  very 
few  slaves  themselves,  yet  they  had  been  pretty  considerable  carriers  of 
them  to  others.  The  debates  having  taken  up  the  greater  parts  of  the 
2d,  3d,  and  4th  days  of  July,  were,  on  the  evening  of  the  last,  closed." 
(Jefferson's  Works,  I.  14,  15.) 

In  Mr.  Adams's  autobiography,  the  following  account  is  given  :  —  "  The 
Committee  of  Independence  were  Thomas  Jefferson,  John  Adams,  Benja- 
min Franklin,  Roger  Sherman,  and  Robert  R.  Livingston.  Mr.  Jeffer- 
son had  been  now  about  a  year  a  member  of  Congress,  but  had  attended 
his  duty  in  the  house  a  very  small  part  of  the  time,  and,  when  there,  had 
never  spoken  in  public.  During  the  whole  time  I  sat  with  him  in  Con- 
gress, I  never  heard  him  utter  three  sentences  together.  It  will  natu- 
rally be  inquired  how  it  happened  that  he  was  appointed  on  a  committee 
of  such  importance.  There  were  more  reasons  than  one.  Mr.  Jefferson 
had  the  reputation  of  a  masterly  pen  ;  he  had  been  chosen  a  delegate  in 
Virginia,  in  consequence  of  a  very  handsome  public  paper  which  he  had 
written  for  the  House  of  Burgesses,  which  had  given  him  the  character 
of  a  fine  writer.  Another  reason  was,  that  Mr.  Richard  Henry  Lee  was 
not  beloved  by  the  most  of  his  colleagues  from  Virginia,  and  Mr.  Jeffer- 
son was  set  up  to  rival  and  supplant  him.  This  could  be  done  only  by 
the  pen,  for  Mr.  Jefferson  could  stand  no  competition  with  him  or  any 

one  else  in  elocution  and  public  debate The  committee  had 

several  meetings,  in  which  were  proposed  the  articles  of  which  the  Dec- 
laration was  to  consist,  and  minutes  made  of  them.  The  committee  then 
appointed  Mr.  Jefferson  and  me  to  draw  them  up  in  form,  and  clothe 
them  in  a  proper  dress.  The  sub-committee  met,  and  considered  the 
minutes,  making  such  observations  on  them  as  then  occurred,  when  Mr. 
Jefferson  desired  me  to  take  them  to  my  lodgings,  and  make  the  draft. 
This  I  declined,  and  gave  several  reasons  for  declining  :  1.  That  he  was 
a  Virginian,  and  I  a  Massachusettensian.  2.  That  he  was  a  Southern 
man,  and  I  a  Northern  one.  3.  That  I  had  been  so  obnoxious  for  my 
early  and  constant  zeal  in  promoting  the  measure,  that  any  draft  of 
mine  would  undergo  a  more  severe  scrutiny  and  criticism  in  Congress 
than  one  of  his  composition.  4.  And  lastly,  and  that  would  be  re'ason 
enough  if  there  were  no  other,  I  had  a  great  opinion  of  the  elegance  of 
his  pen,  and  none  at  all  of  my  own.  I  therefore  insisted  that  no  hesita- 
tion should  be  made  on  his  part.     He  accordingly  took  the  minutes,  ana 


84  THE  FEDERAL  CONSTITUTION.  [Book  I. 

in  a  day  or  two  produced  to  me  his  draft.  Whether  I  made  or  suggested 
any  corrections  I  remember  not.  The  report  was  made  to  the  committee 
of  five,  by  them  examined,  but  whether  altered  or  cor];ected  in  any  thing, 
I  cannot  recollect.  But,  in  substance,  at  least,  it  was  reported  to  Con- 
gress, where,  after  a  severe  criticism,  and  striking  out  several  of  the 
most  oratorical  paragraphs,  it  was  adopted  on  the  4th  of  July,  1776, 
and  published  to  the  world."     (Adams's  Works,  II.  511-515.) 

The  account  in  Mr.  Adams's  letter  to  Mr.  Pickering  is  as  follows :  — 
"  You  inquire  why  so  young  a  man  as  Mr.  Jefferson  was  placed  at  the 
head  of  the  committee  for  preparing  a  Declaration  of  Independence?  1 
answer,  it  was  the  Frankfort  advice  to  place  Virginia  at  the  head  of  every 
thing.  Mr.  Richard  Henry  Lee  might  be  gone  to  Virginia,  to  his  sick 
family,  for  aught  I  know ;  but  that  was  not  the  reason  of  Mr.  Jefferson's 
appointment.  There  were  three  committees  appointed  at  the  same  time. 
One  for  the  Declaration  of  Independence,  another  for  preparing  Articles 
of  Confederation,  and  another  for  preparing  a  treaty  to  be  proposed  to 
France.  Mr.  Lee  was  chosen  for  the  Committee  of  Confederation,  and  it 
was  not  thought  convenient  that  the  same  person  should  be  upon  both. 
Mr.  Jefferson  came  into  Congress  in  June,  1775,  and  brought  with  him  a 
reputation  for  literature,  science,  and  a  happy  talent  of  composition. 
Writings  of  his  were  handed  about,  remarkable  for  theii:  peculiar  felicity 
of  expression.  Though  a  silent  member  in  Congress,  he  was  so  prompt, 
frank,  explicit,  and  decisive  upon  committees  and  in  conversation,  —  not 
even  Samuel  Adams  was  more  so,  —  that  he  soon  seized  upon  my  heart ; 
and  upon  this  occasion  I  gave  him  my  vote,  and  did  all  in  my  power  to 
procure  the  votes  of  others.  I  think  he  had  one  more  vote  than  any 
other,  and  that  placed  him  at  the  head  of  the  committee.  I  had  the  next 
highest  number,  and  that  placed  me  second.  The  committee  met,  dis- 
cussed the  subject,  and  then  appointed  Mr.  Jefferson  and  me  to  make  the 
draft,  I  suppose  because  we  were  the  two  first  on  the  list.  The  sub- 
committee met.  Jefferson  proposed  to  me  to  make  the  draft.  I  said,  '  I 
will  not.'  'You  should  do  it.'  '0,  no.'  'Why  will  you  not? 
Yon  ought  to  do  it.'  'I  will  not.'  'Why?'  'Reasons  enough.' 
'  What  can  be  your  reasons? '  '  Reason  first,  —  You  are  a  Virginian, 
and  a  Virginian  ought  to  appear  at  the  head  of  this  business.  Reason 
second,  —  I  am  obnoxious,  suspected,  and  unpopular.  You  are  very 
much  otherwise.  Reason  third,  —  You  can  write  ten  times  better  than  I 
can.'  '  Well,'  said  Jefferson,  '  if  you  are  decided,  I  will  do  as  well 
as  I  can.'  '  Very  well.  When  you  have  drawn  it  up,  we  will  have  a 
meeting.' 

"  A  meeting  we  accordingly  had,  and  conned  the  paper  over.     I  was 


Ch.  m.]   THE  EEVOLUTIONAUY  GOVERNMENT.      85 

delighted  with  its  high  tone  and  the  flights  of  oratory  with  which  it 
ibounded,  especially  that  concerning  negro  slavery,  which,  though  I 
inew  his  Southern  brethren  would  never  suffer  to  pass  in  Congress,  1 
certainly  never  would  oppose.  There  were  other  expressions  which  1 
would  not  have  inserted,  if  I  had  drawn  it  up,  particularly  that  which 
called  the  King  tyrant.  I  thought  this  too  personal ;  for  I  never  believed 
George  to  be  a  tyrant  in  disposition  and  in  nature ;  I  always  believed 
him  to  be  deceived  by  his  courtiers  on  both  sides  of  the  Atlantic,  and  in 
his  official  capacity  only,  cruel.  I  thought  the  expression  too  passionate, 
and  too  much  like  scolding,  for  so  grave  and  solemn  a  document ;  but  as 
Franklin  and  Sherman  were  to  inspect  it  afterwards,  I  thought  it  would 
not  become  me  to  strike  it  out.  I  consented  to  report  it,  and  do  not  now 
remember  that  I  made  or  suggested  a  single  alteration. 

"  We  reported  it  to  the  committee  of  five.  It  was  read,  and  I  do  not 
remember  that  Franklin  or  Sherman  criticized  any  thing.  We  were  all 
in  haste.  Congress  was  impatient,  and  the  instrument  was  reported,  as 
I  believe,  in  Jefferson's  handwriting,  as  he  first  drew  it.  Congress  cut 
off  about  a  quarter  of  it,  as  I  expected  they  would  ;  but  they  obliterated 
some  of  the  best  of  it,  and  left  all  that  was  exceptionable,  if  any  thing  in 
it  was.  I  have  long  wondered  that  tlie  original  draft  has  not  been  pub- 
lished. I  suppose  the  reason  is,  the  vehement  philippic  against  negro 
slavery. 

"  As  you  justly  observe,  there  is  not  an  idea  in  it  but  what  had  been 
hackneyed  in  Congress  for  two  years  before.  The  substance  of  it  is  con 
tained  in  the  declaration  of  rights  and  the  violation  of  those  rights,  in 
the  Journals  of  Congress,  in  1774.  Indeed,  the  essence  of  it  is  contained 
in  a  pamphlet,  voted  and  printed  by  the  town  of  Boston,  before  the  first 
Congress  met,  composed  by  James  Otis,  as  I  suppose,  in  one  of  his  lucid 
intervals,  and  pruned  and  polished  by  Samuel  Adams.'' 

Mr.  Jefferson,  on  the  contrary,  in  his  letter  to  ]\Ir.  Madison,  says :  — 
"These  details  are  quite  incorrect.  The  committee  of  five  met;  no 
such  thing  as  a  sub-committee  was  proposed,  but  they  unanimously 
pressed  on  myself  alone  to  undertake  the  draft.  I  consented  ;  I  drew  it ; 
but,  before  I  reported  it  to  the  committee,  I  communicated  it  separately 
to  Doctor  Franklin  and  Mr.  Adams,  requesting  their  correction,  because 
they  were  the  two  members  of  whose  judgments  and  amendments  1 
wished  most  to  have  the  benefit,  before  presenting  it  to  the  committee  ; 
and  you  have  seen  the  original  paper  now  in  my  hands,  with  the  correc- 
tions of  Doctor  Franklin  and  Mr.  Adams  interlined  in  their  own  hand- 
writings. Their  alterations  were  two  or  three  only,  and  merely  verbal. 
I  then  wrote  a  fair  copy,  reported  it  to  the  committee,  and  from  them 


86  THE  FEDERAL  CONST'lTUTION.  [Book  I 

unaltered,  to  Congress.  This  personal  communication  and  consultation 
with  Mr.  Adams  he  has  misremembered  into  the  actings  of  a  sub-com- 
mittee. Pickering's  observations,  and  Mr.  Adams's  in  addition,  '  that 
it  contained  no  new  idea,  that  it  is  a  commonplace  compilation,  its  senti- 
ments hackneyed  in  Congress  for  two  years  before,  and  its  essence  con- 
tained in  Otis's  pamphlet,'  may  all  be  true.  Of  that  I  am  not  to  be  the 
judge.  Richard  Henry  Lee  charged  it  as  copied  from  Locke's  Treatise 
on  Government.  Otis's  pamphlet  1  never  saw,  and  whether  I  had  gath- 
ered my  ideas  from  reading  or  reflection  I  do  not  know.  I  know  only 
that  I  turned  to  neither  book  nor  pamphlet  while  writing  it.  I  did  not 
consider  it  as  any  part  of  my  charge  to  invent  new  ideas  altogether,  and 
to  offer  no  sentiment  which  had  ever  been  expressed  before.  Had  Mr. 
Adams  been  so  restrained,  Congress  would  have  lost  the  benefit  of  his 
bold  and  impressive  advocations  of  the  rights  of  revolution.  For  no 
man's  confident  and  fervid  addresses,  more  than  Mr.  Adams's,  encour- 
aged and  supported  us  through  the  difficulties  surrounding  us,  which 
like  the  ceaseless  action  of  gravity,  weighed  on  us  by  night  and  by  day. 
Yet,  on  the  same  ground,  we  may  ask  what  of  these  elevated  thoughts 
was  new,  or  can  be  affirmed  never  before  to  have  entered  the  conceptions 
of  man  ? 

"  Whether,  also,  the  sentiment  of  Independence,  and  the  reasons  for  de- 
claring it,  which  make  so  great  a  portion  of  the  instrument,  had  been 
hackneyed  in  Congress  for  two  years  before  the  4th  of  July,  1776,  or  this 
dictum  of  Mr.  Adams  be  another  slip  of  memory,  let  history  say.  This, 
however,  I  will  say  for  Mr.  Adams,  that  he  supported  the  Declaration 
with  zeal  and  ability,  fighting  fearlessly  for  every  word  of  it.  As  to 
myself,  I  thought  it  a  duty  to  be,  on  that  occasion,  a  passive  auditor  of 
the  opinions  of  others,  more  impartial  judges  than  I  could  be  of  its  merits 
or  demerits.  During  the  debate  I  was  sitting  by  Doctor  Franklin,  and 
he  observed  that  I  was  writhing  a  little  under  the  acrimonious  criticisms 
on  some  of  its  parts ;  and  it  was  on  that  occasion,  that,  by  way  of  comfort, 
he  told  me  the  story  of  John  Thomson,  the  hatter,  and  his  new  sign." 
(Jeflferson's  Works,  IV.  37G.) 

The  substantial  point  of  difference  in  these  two  accounts  of  the  same 
transaction,  relates  to  the  action  of  the  committee  in  designating  the  per- 
son or  persons  who  were  to  prepare  the  draft  of  a  Declaration.  Mr 
Adams  states  that  Mr.  Jefferson  and  himself  were  appointed  a  sub-corn 
mittee  to  prepare  it ;  Mr.  Jefferson  states  thai  he  alone  was  directed  by 
the  committee  to  write  the  Declaration.  This  question  is  not  important, 
since  Mr.  Adams's  version  does  not  in  the  least  impair  Mr.  JefTerson't 
claim  to  the  authorship  of  the  instrument,     'ihe  latter,  it  must  be  al- 


Ch.  m.]    THE  REVOLUTIONARY  GOVERNMENT.       87 

lowed,  gracefully  parries  the  criticisms  of  Mr.  Adams,  by  a  noble  allusion 
to  the  eloquence  which  sustained  his  compatriots  in  the  difficulties  and 
embarrassments  that  surrounded  them,  and  which  they  did  not  think  of 
analyzing,  for  the  purpose  of  tracing  the  exact  originality  of  its  senti- 
ments. 

It  is  proper  to  add,  that  l\Ir.  Jefferson's  account  is  confirmed  by  the 
original  manuscript  draft  of  the  Declaration,  a  fac-simile  of  which  was 
published  in  1829,  in  the  fourth  volume  of  his  Works,  exhibiting  the  cor- 
rections and  interlineations  made  by  Dr.  Franklin  and  Mr.  Adams  in 
their  respective  handwritings.     These  emendations  were  not  important. 

The  reasons  assigned  by  Mr.  Adams  for  the  selection  of  Mr.  Jefferson 
as  the  writer  of  the  Declaration  are  so  numerous,  that  it  is  difficult  to 
determine  which  of  them  he  intended  should  be  regarded  as  the  princi- 
pal or  decisive  one.  In  the  autobiography,  he  states  that  there  were 
more  reasons  than  one  why  Mr.  Jefferson  was  appointed  on  a  committee 
of  such  importance.  He  assigns  two  reasons  :  one,  Mr.  Jefferson's  repu- 
tation as  a  writer,  and  the  other,  the  desire  of  his  Virginia  colleagues 
to  have  Mr.  Jefferson  supplant  Mr.  Richard  Henry  Lee.  In  his  letter  to 
Mr.  Pickering,  Mr.  Adams  gives  as  the  reason  why  Mr.  Jefferson  was 
placed  at  the  head  of  the  committee,  that  it  was  "  the  Frankfort  advice 
to  place  Virginia  at  the  head  of  every  thing";  but  he  also  adds,  that 
Mr.  Jefferson  brought  with  him  to  Congress  "  a  reputation  for  literature, 
science,  and  a  happy  talent  of  composition,"  and  that  this  reputation  had 
then  been  sustained  by  writings  "  remarkable  for  their  peculiar  felicity  of 
expression."  As  in  the  case  of  Washington,  therefore,  it  would  seem 
that  there  were  reasons  of  eminent  fitness  and  qualification  for  the  duty 
assigned  ;  and  certainly  the  Declaration  of  Independence  itself  fully  jus- 
tifies the  selection.  Few  state  papers  have  ever  been  written  with  more 
skill,  or  greater  adaptation  to  the  purposes  in  view.  Whether  its  senti- 
ments were  purely  original  with  its  author,  or  were  gathered  from  the 
political  philosophy  which  had  become  familiar  to  the  American  mind, 
through  the  great  discussions  of  the  time,  it  must  for  ever  remain  an  im- 
perishable monument  of  his  power  of  expression,  and  his  ability  to  touch 
the  passions,  as  well  as  to  address  the  reason,  of  mankind.  It  would  be 
inappropriate  to  apply  to  its  style  the  canons  of  modern  criticism.  Its 
statements  of  political  truth,  taken  in  the  sense  in  which  they  were  mani- 
festly intended,  can  never  be  successfully  assailed.  With  regard  to  the 
passage  concerning  slavery,  we  may  well  conceive  that  both  Northern 
and  Southern  men  might  have  felt  the  injustice  of  the  terrible  denuncia- 
tion with  which  he  charged  upon  the  King  all  the  horrors,  crimes,  and 
consequences  of  the  African  slave-trade,  and  in  which  he  accused  him 


88  THE  FEDEEAL  CONSTITUTION.  [Book  I. 

of  exciting  the  slaves  to  insurrection,  and  "  to  purchase  the  liberty  of 
which  he  had  deprived  them  by  murdering  the  people  upon  whom  he  had 
obtruded  them."  Mr.  Jefferson,  in  drawing  up  the  list  of  our  national 
accusations  against  the  King,  obviously  intended  to  refer  to  him  as  the 
representative  of  the  public  policy  and  acts  of  the  mother  country ;  and 
it  is  true  that  the  imperial  government  was,  and  must  always  remain, 
responsible  for  the  existence  of  slavery  in  the  colonies.  But  this  was  not 
one  of  the  grievances  to  be  redressed  by  the  Revolution  ;  it  did  not  con 
stitute  one  of  the  reasons  for  aiming  at  independence  ;  and  there  was  no 
suflicient  ground  for  the  accusation  that  the  government  of  Great  Britain 
had  knowingly  sought  to  excite  general  insurrections  among  the  slaves. 
The  rejection  of  this  passage  from  the  Declaration  shows  that  the  Con- 
gress did  not  consider  this  charge  to  be  as  tenable  as  all  their  other  com- 
plaints certainly  were. 


CHAPTER   lY. 

July,  1776  —  November,  1777. 
Consequences  of   the   Declaration  of  Independence.  —  Redrgaki- 

ZATION     OF    THE    CONTINENTAL    ArMY.  FlIGHT    OF    THE    CoNGRESS 

FROM  Philadelphia.  —  Plan  of  the  Confederation  proposed. 

When  the  Declaration  of  Independence  at  length 
came,  it  did  not  in  any  way  change  the  form  of  the 
revolutionary  government.  It  created  no  institution, 
and  erected  no  civil  machuiery.  Its  political  effect 
has  already  been  described.  Its  moral  effect,  both 
upon  the  members  of  the  Congress  and  upon  the 
country,  was  very  great,  inasmuch  as  it  put  an  end 
alike  to  the  hope  and  the  possibility  of  a  settle 
ment  of  the  controversy  upon  the  principles  of  the 
English  Constitution,  for  it  made  the  colonies  free, 
sovereign,  and  uidependent  states.  Men  who  had 
voted  for  such  a  measm-e,  and  who  had  put  their 
signatures  to  an  instrument  which  the  British  Par- 
liament or  the  Court  of  King's  Bench  could  have 
had  no  difficulty  in  pmiishmg  as  treasonable,  could 
no  longer  continue  to  feed  themselves  on  "the  dainty 
food  of  reconciliation."^     Thenceforward,  there  wa^ 

1  Washington's  Writings,  III.  403. 

VOL.    I.  12 


90  *  THE  FEDERAL  CONSTITUTION.  [Book  I. 

no  retreat.  The  colonies  might  be  conquered,  over- 
run, and  enslaved ;  but  this,  or  the  full  and  final 
establishment  'of  their  own  sovereignty,  were  the  sole 
alternatives.  The  consequence  was,  that  the  Decla- 
ration was  followed  by  a  greater  alacrity  on  the  part 
of  the  vdiole  body  of  the  Congress  to  adopt  vigorous 
and  decisive  measures,  than  had  before  prevailed 
among  them. 

But  there  was  one  feeling  which  the  Declaration 
did  not  dispel,  and  another  to  wliich  it  immediately 
gave  rise,  both  of  which  were  unfavorable  to  concen- 
trated, vigorous,  and  effective  action  on  the  part  of 
the  revolutionary  government.  The  Declaration  of 
Independence  did  not  dissipate  the  unreasonable  and 
ill-timed  jealousy  of  standing  armies,  which  gave 
way,  at  last,  only  when  the  country  was  in  such  im- 
minent peril  that  Washington  felt  it  to  be  his  duty 
to  ask  for  extraordmary  powers,  to  be  conferred  upon 
himself.  It  was  followed,  too,  as  an  unmediate  con- 
sequence, by  that  jealousy  with  regard  to  State 
rights,  and  that  adhesion  to  State  interests,  which 
have  existed  m  our  system  from  that  day  to  the 
present,  and  are  not  entirely  separable  from  it.  As 
the  Declaration  made  the  colonies  sovereign  and  in- 
dependent, and  was  followed  by  the  formation  of 
State  governments,  before  the  creation  of  any  well 
defined  national  system.  State  sovereignty  became  at 
once  an  ever-present  cause  of  embarrassment  to  the 
Congress,  in  whose  procecduigs  entu-e  delegations 
sometimes  made  the  interests  of  the  country  bend 
to  the  interests  of  their  own  State,  to  a  mischievous 
extent. 


Ch.  IV.]         THE  REVOLUTIONAKY  GOVERNMENT.  91 

To  explain  these  observations,  we  must  recur  again 
to  the  history  of  the  army,  and  to  the  efforts  of 
Washington  to  have  the  military  establishment  put 
into  a  safe  and  efficient  condition. 

After  the  evacuation  of  Boston  by  the  British 
forces.  General  Washmgton  proceeded,  at  once,  with 
the  continental  army  to  the  city  Of  New  York, 
where  he  arrived  on  the  13th  of  April,  1776.  The 
loss  of  the  battle  of  Long  Island  on  the  27th  of 
August,  and  the  extreme  improbability  of  his  being 
able  to  hold  the  city  agamst  the  superior  forces  by 
which  it  had  been  invested  through  the  entu-e  srun- 
mer,  made  it  necessary  for  him  to  appeal  once  more 
to  the  Congress  for  the  organization  of  a  permanent 
army,  capable  of  offering  effectual  resistance  to  the 
enemy.  The  establishment  foimed  at  Cambridge  in 
the  autumn  pre\dous  was  to  contmue  for  one  year 
only ;  it  was  about  to  be  dissolved ;  and  in  the  month 
of  September  General  "Washington  was  compelled  to 
abandon  the  city  of  New  York  to  the  enemy.  Be- 
fore he  withdrew  from  it,  he  addressed  a  letter  to 
the  President  of  Congress,  on  the  2d  of  September, 
in  which  he  told  that  body  explicitly  that  the  liber- 
ties of  the  country  must  of  necessity  be  greatly  haz- 
arded, if  not  entirely  lost,  should  their  defence  be  left 
to  any  but'  a  pemianent  standing  army ;  and  that, 
with  the  army  then  under  his  command,  it  was  im- 
possible to  defend  and  retain  the  city.^     On  the  20th 

1  Writings  of  Washington,  IV.  72. 


92  THE  FEDEEAL  CONSTITUTION.  IBook  J. 

of  the  same  month,  he  agaui.  wrote,  expressmg  the 
opinion  that  it  would  be  entirely  impracticable  to 
raise  a  proper  army,  without  the  allowance  of  a  large 
and  extraordmary  bomity.-^ 

At  length,  when  he  had  retreated  to  the  Heights 
of  Haerlem,  and  found  himself  surrounded  by  a  body 
of  troops  hnpatient  of  restramt,  because  soon  to  be 
entitled  to  their  discharge,  and  turbulent  and  licen- 
tious, because  they  had  never  felt  the  proper  induce- 
ments which  create  good  conduct  m  the  soldier,  he 
made  one  more  appeal  to  the  patriotism  and  good 
sense  of  the  Congress.  Few  docimients  ever  pro- 
ceeded from  his  pen  more  wise,  or  e\incing  greater 
knowledge  of  mankind,  or  a  more  profound  appre- 
hension of  the  great  subject  before  him,  than  the 
letter  which  he  then  wrote  concernmg  the  reorgani- 
zation of  the  army.^ 

Before  this '  letter  was  written,  however,  urged  by 
his  repeated  requests  and  admonished  by  defeat,  the 
Congress  had  adopted  a  plan,  reported  by  the  Board 
of  "War,  for  the  organization  of  a  new  army,  to  serve 
durmg  the  war.  A  long  debate  preceded  its  adop- 
tion, but  the  resolves  were  at  length  passed  on  the 
16th  of  September,  1776.^  They  authorized  the  en- 
Hstment  of  a  body  of  troops,  to  be  divided  into  eigh- 
ty-eight battalions,  and  to  be  enlisted  as  soon  as 
possible.  These  battalions  were  to  be  raised  by  the 
States ;  a  certain  number  being  assigned  to  each  State 

1  Writings  of  Washington,  IV.       gress,  Washington's  Writings,  IV 
100.  110.     September  24,  1776. 

^  Letter  to  the  President  of  Con-  ^  Journals,  II.  357. 


Ch.  IV.]        THE  EEVOLUTIONAKY  GOVEENMENT.  93 

as  its  quota.  The  higkest  quota,  which  was  15,  was 
assigned  to  the  States  of  Virginia  and  Massachusetts, 
respectively.  Pennsylvania  had  12;  North  Carolina, 
9 ;  Maryland  and  Connecticut,  8  each ;  South  Caro- 
lina, 6 ;  New  York  and  New  Jersey,  4  each ;  New 
Hampshu'e,  3 ;  Khode  Island,  2 ;  and  Delaware  and 
Georgia,  1  each.  The  inducements  to  enlist  were 
a  bounty  of  twenty  dollars  and  one  hundred  acres 
of  land  to  each  non-commissioned  officer  or  soldier ; 
and  to  the  commissioned  officers,  the  same  bomity 
in  money,  with  larger  portions  of  land.-^  The  States 
were  to  provide  arms  and  clothing  for  their  respec- 
tive quotas,  and  the  expense  of  clothing  was  to  be 
deducted  from  the  pay.^  Although  the  officers  were 
to  be  commissioned  by  the  Continental  Congress, 
each  State  was  to  appoint  the  officers  of  its  o\mi  bat- 
talions, from  the  colonel  to  those  of  the  lowest  grade, 
inclusive.  A  circular  letter  was  addressed  by  Con- 
gress to  each  State,  urgmg  its  immediate  attention 
to  the  raising  of  these  troops;  and  a  committee  of 
three  members  of  the  Congress  was  sent  to  the  head- 
quarters of  General  Washington,  to  confer  with  him 
on  the  subject.^ 

Two  serious  defects  in  this  plan  struck  the  Com- 
mander-in-chief, as  soon  as  it  was  laid  before  him; 
but  the  resolves  had  been  passed,  and  passed  "vvith 

1  500  acres  to  a  colonel  ;  450  12  (1776),  the  option  was  given  to 
to  a  lieutenant-colonel  ;  400  to  a  enlist  for  the  war  or  for  three  years, 
major  ;  300  to  a  captain  ;  200  to  a  taking  away  the  land  bounty  from 
lieutenant ;  and  150  to  an  ensign.  those  who  enlisted  for  the   latter 

2  Journals,  IT.  357.  Subsequent-  period  only.     Ibid.  454. 
ly,  by  a  resolve  passed  November  ^  Ibid. 


94  THE  FEDERAL  CONSTITUTION.  [Book  I. 

difficulty,  before  he  had  an  opportunity  specifically 
to  point  out  the  mistakes.  In  the  first  place,  by 
giving  the  appointment  of  the  officers  to  the  States, 
any  central  system  of  promoting  or  placmg  the  offi- 
cers then  serving  on  the  continental  establishment  ac- 
cording to  their  characters  and  deserts  was  rendered 
impossible.  The  resolutions  of  Congress  did  not  even 
recommend  these  officers  to  the  consideration  of 
their  respective  States.  They  were  left  to  solicit 
their  appointments  at  a  distance,  or  to  go  home 
and  make  personal  application.  Those  who  chose 
to  do  the  latter  were  more  likely  to  get  good  places 
than  those  who  remained  at  their  posts ;  but  they 
were  also  less  likely  to  be  deser\ing  of  important 
commissions  than  those  who  stayed  with  the  army. 
To  expect  that  a  proper  attention  would  be  paid  to 
the  claims  of  men  of  real  merit,  under  such  a  sys- 
tem, —  whether  they  had  or  had  not  been  in  service 
before,  —  or  that  the  army  when  brought  together 
would  be  found  to  be  officered  on  a  uniform  prin- 
ciple, exhibiting  an  adaptation  of  character  to  sta- 
tion, was,  m  Washmgton's  view,  to  expect  that  local 
authorities  would  not  be  influenced  by  local  attach- 
ments, and  that  merit  would  make  its  way,  in  silence 
and  absence,  agamst  personal  importunity  and  bold 
presumption. 

But  Washington  saw  no  remedy  for  these  evils, 
except  by  opening  a  direct  communication  with  the 
States,  through  which  lie  might  exert  some  influence 
over  their  appointments.  He  immediately  suggested 
to  the  Congress,  that  each  State  should  send  a  com- 


Ch.  IV.]       THE  EEVOLUTIONAEY   GOVERNMENT.  95 

mission  to  the  anny,  with  authority  to  appoint  all 
the  officers  of  the  new  regiments.  Congress  passed 
a  resolve  recommendmg  this  step  to  the  States,  and 
advising  that  the  Commander-in-cliief  should  he 
consulted  in  makmg  the  appointments ;  that  those 
officers  should  be  promoted  who  had  distmguished 
themselves  for  bravery  and  attention  to  their  duties ; 
that  no  officer  should  be  appointed  who  had  left 
his  station  A^ithout  leave ;  and  that  all  the  officers  to 
be  appointed  should  be  men  of  honor  and  knoAvn 
abilities,  without  particular  regard  to  their  having 
been  in  service  before.-'^  This  was  but  a  partial  rem- 
edy for  the  defects  of  the  system.  Several  of  the 
States  sent  such  a  commission  to  act  with  the  Com- 
mander-in-chief; but  many  of  them  were  tardy  in 
making  their  appomtments,  and  finally  the  Congress 
authorized  General  Washington  to  fill  the  vacancies. 
Another  and  a  dangerous  defect  in  this  plan  was, 
that  the  continental  pay  and  bounty  on  enlistment 
were  fixed  so  low,  that  some  of  the  States,  in  order 
to  fill  up  their  quotas,  deemed  it  expedient  to  offer 
a  further  pay  and  bounty  to  their  owa  men.  This 
was  done  immediately  by  the  States  of  Connecticut 
and  Massachusetts.  The  consequence  was  likely  to 
be,  that,  if  the  quotas  of  some  States  were  raised 
before  the  fact  became  known  that  other  States  had 
increased  the  pay  and  the  bounty,  some  regiments 
would,  when  the  army  came  together,  be  on  higher 
pay  than  others,  and  jealousy,  impatience,  and  mu 

1  Journals,  II.  403.     October  8,  1776. 


96  THE  FEDERAL  CONSTITUTION.  [Book  ±. 

tiny  must  inevitably  follow.  Knowing  that  a  differ- 
ent pay  could  not  exist  in  the  same  army  without 
these  consequences,  General  Washington  remonstrat- 
ed with  the  Governor  of  Connecticut,  arrested  the 
proceedings  of  the  commissioners  of  that  State  and 
of  Massachusetts,  and  prevented  them  fi:om  publish- 
ing then'  terms,  until  the  sense  of  the  Congress  could 
be  obtained.^  That  body,  on  receivhig  from  him  an- 
other strong  representation  on  the  subject,  passed  a 
resolve  augmenting  the  pay. 

Still,  the  system,  notwithstanding  these  efforts  to 
amend  it,  worked  ill.  The  appomtment  of  the  offi- 
cers by  the  States  was  mcapable  of  being  well  man- 
aged ;  the  pay  and  bomity,  even  after  they  were  in- 
creased, were  msufficient ;  and  the  whole  scheme  of 
raising  a  permanent  army  was  entered  upon  at  too 
late  a  period  to  be  effectually  accomphshed.  As 
late  as  the  middle  of  November,  so  little  had  been 
done,  that  the  whole  force  on  one  side  of  the  Hud- 
son, opposed  to  Howe's  whole  army,  did  not  exceed 
two  thousand  men  of  the  established  regiments  ; 
while,  on  the  other  side,  there  was  a  force  not  much 
larger  to  secure  the  passes  hito  the  Higlilands.^  "  I 
am  wearied  almost  to  death,"  said  the  Commander- 
in-chief,  m  a  private  letter,  "  with  the  retrograde 
motion  of  things,  and  I  solemnly  protest  that  a  pe- 
cuniary reward  of  twenty  thousand  pounds  a  year 
would  not  induce  me  to  undergo  what  I  do ;    and 

»  Writings  of  Washington,  IV.  173.  2  ibid.  183,  184 


Ch.  iv.]    the  revolutionary  government.  97 

after  all,  perhaps,  to  lose  my  character,  as  it  is  im- 
possible, under  such  a  variety  of  distressing  cii-cum- 
stances,  to  conduct  matters  agreeably  to  public  ex- 
pectation, or  even  to  the  expectations  of  those  who 
employ  me,  as  they  will  not  make  proper  allowances 
for  the  difficulties  theu'  o^vn  errors  have  occasioned."^ 
There  are  few  pages  in  our  history  so  pamful  as 
those  on  wliich  are  recorded  the  complamts  extort- 
ed from  Washington,  at  this  period,  by  the  trials 
of  his  situation.  That  he,  an  accomplished  soldier, 
who  had  retii'ed  with  honor  fi:om  the  late  war  with 
France  to  his  serene  Momit  Vernon ;  who  had  left 
it  agahi,  to  stake  life,  and  all  that  makes  life  val- 
uable, on  the  new  issue  of  his  comitiy's  uidepen- 
dence ;  who  asked  no  recompense  and  sought  no 
object  but  her  welfare,  should  have  been  compelled 
to  pass  into  the  dark  valley  of  the  retreat  through 
New  Jersey,  vath  all  its  perplexities,  dangers,  and 
discouragements,  —  its  cruel  exertions  and  its  hu- 
miliatmg  reverses,  —  mthout  a  powerful  and  ener- 
getic government  to  lean  upon,  and  -svith  scarcely 
more  than  Divme  assistance  to  which  to  turn,  pre- 
sents, indeed,  to  our  separate  contemplation,  a  dis- 
heartening and  discreditable  fact.  But  no  trials  are 
appointed  to  nations,  or  to  men,  "without  their  fruits. 
The  perplexities  and  difficulties  which  surrounded 
Washmgton  m  the  early  part  of  the  Eevolution  con- 
tributed, undoubtedly,  to  give  hun  that  profomid  civil 
wisdom,  that  Iviiowledge  of  our  civil  wants,  and  that 


'  Writings  of  Washington,  IV.  184. 

VOL.    I  1.3 


98  THE  TEDERAL  CONSTITUTION.  [Book  L 

influence  over  the  moral  sense  of  the  country,  which 
were  afterwards  so  beneficently  felt  in  the  establish- 
ment of  the  Constitution.  The  very  weakness  of  the' 
government  which  he  served  became  in  this  manner 
his  and  our  strength.  Without  the  trials  to  which 
it  subjected  him,  it  may  well  be  doubted  whether  we 
should  now  possess  that  tower  of  strength,  —  that 
security  against  distracted  counsels  and  clashing  in- 
terests,—  which  exist  for  us  m  the  character  and 
services  of  that  extraordmary  man. 

It  is  not  necessary  to  sketch  the  scene  or  to  follow 
the  route  of  General  Washington's  retreat  through 
New  Jersey,  except  as  they  illustrate  the  subject  of 
this  work,  —  the  constitutional  history  of  the  coun- 
try. Its  remarkable  military  story  is  well  known. 
On  the  23d  of  November,  four  days  after  the  date  of 
the  letter  to  his  brother  above  quoted,  he  was  at 
Newark,  with  a  body  of  troops  whose  departure  was 
near  at  hand,  and  for  supplying  whose  places  no  pro- 
vision had  been  made.  The  enemy  were  pressing  on 
his  rear,  and  in  order  to  impress  upon  Congress  the 
danger  of  his  situation,  he  sent  General  Mifflin  to 
lay  an  exact  account  of  it  before  them.^  On  the 
28th,  he  marched  out  of  Newark  in  the  morning, 
and  Lord  Cornwallis  entered  it  on  the  afternoon  of 
the  same  day.  On  the  30th,  he  was  at  Brunsmck, 
endeavoring,  but  Avith  little  success,  to  raise  the 
militia ;  —  the  terms  of  ser\dce  of  the  Jersey  and 
Maryland  brigades  exphing  on  that  day.     On  the 

1  Writings,  IV.  190. 


Ch.  IV.]        THE  EEVOLUTIONAKY  GOVEENIVIENT.  99 

1st  of  December,  his  army  numbered  only  four  thou- 
sand men,  and  the  enemy  were  pushmg  forward  with 
the  greatest  energy.^  On  the  5th,  he  resolved  to 
march  back  to  Princeton ;  but  neither  militia  nor 
regulars  had  come  in,  and  it  was  too  late  to  prevent 
an  evil,  which  he  had  both  foreseen  and  foretold.^ 
On  the  8th,  he  crossed  the  Delaware.^  On  the  12th, 
he  saw  his  little  handful  of  men  still  further  decrease, 
and  now,  "svithout  succors  fi'om  the  government,  or 
spirited  exertions  on  the  part  of  the  people,  the  loss 
of  Philadelphia — "an  event,"  said  he,  "which  will 
wound  the  heart  of  every  virtuous  American"  —  rose 
as  a  spectre  in  his  path.*  On  the  16th,  as  he  moved 
on,  gathering  all  the  great  energies  of  his  character  to 
parry  tliis  deep  disgrace,  concentrating  eveiy  force 
that  remained  to  him  towards  the  defence  of  the  city, 
and  animating  and  directing  public  bodies,  in  a  tone 
of  authority  and  command,  he  once  more  m*ged  the 
Congress  to  discard  all  reliance  upon  the  militia,  to 
augment  the  number  of  the  regular  troops,  and  to 
strain  every  nerve  to  recruit  them.^  Fmally, — being 
still  in  doubt  whether  Howe  did  not  intend  an  at- 
tack on  Philadelphia,  before  going  into  winter  quar 
ters, — -with  less  than  three  thousand  men  fit  for  duty, 
to  oppose  a  well-appointed  army  of  ten  or  twelve 
thousand,  and  surrounded  by  a  population  rapidly 
submitting  to  the  enemy,  —  he  felt  that  the  time  had 
come,  when  to  his  single  hands  must  be  given  all  the 
military  authority  and  power  which  the  Continental 

1  Ibid.  197.  3  Ibid.  206.  ,  5  Ibid.  225. 

3  Ibid.  202.  4  Ibid.  211. 


100  THE  FEDERAL  CONSTITUTION.  [Book  L 

Union  of  America  held  in  trust  for  the  liberties  of 
the  coimtry.  On  the  20th  of  December,  therefore,  he 
wrote  to  the  President  of  Congress  a  memorable  let- 
ter, asking  for  extraorduiary  powers,  but  displa}ing 
at  the  same  tune  all  the  modesty  and  high  prmciple 
of  his  character.-^ 

To  this  appeal  Congress  at  once  responded,  in  a 
manner  suited  to  the  exigency.  On  the  27th  of 
December,  1776,  they  passed  a  resolution,  vestmg 
m  General  Washmgton  ample  and  complete  pow- 
er to  raise  and  collect  together,  in  the  most  speedy 
and  effectual  manner  fi:om  all  or  any  of  the  United 
States,  sixteen  battalions  of  uifantry,  m  addition  to 
those  already  voted ;  to  appoint  the  officers  of  these 
battahons;  to  raise,  officer,  and  equip  three  regi- 
ments of  artillery  and  a  corps  of  engineers,  and  to 
establish  their  pay ;  to  apply  to  any  of  the  States  for 
such  aid  of  their  militia  as  he  might  judge  necessary ; 
to  form  such  magazines  of  provisions,  and  m  such 
places,  as  he  should  think  proper;  to  displace  and 
appoint  all  officers  under  the  rank  of  brigadier-gen- 
eral; to  fill  up  all  vacancies  m  every  other  depart- 
ment of  the  American  aiiny ;  to  take,  wherever  he 
might  be,  whatever  he  might  want  for  the  use  of 
the  army,  if  the  inhabitants  would  not  sell  it,  allow- 
mg  a  reasonable  price  for  the  same;  to  arrest  and 
confine  ]3ersons  who  should  refuse  to  receive  the  con- 
tinental currency,  or  were  other"vvise  disaffected  to  the 
American  cause ;  and  to  retmii  to  the  States  of  which 

1  Writings,  IV.  232. 


Ch.  IV.]        THE  EEVOLUTIONAEY  GOVEEmiENT. 


101 


such  persons  were  citizens  their  names  and  the  na 
tui'e  of  their  offences,  together  with  the  -witnesses  to 
prove  them.  These  powers  w^ere  vested  in  the  Com- 
mander-in-chief for  the  space  of  six  months  from  the 
date  of  the  resolve,  unless  sooner  revoked  by  the 
Congress.-^ 


The  powers  thus  conferred  upon  General  Wash- 
ington w^ere  m  reality  those  of  a  military  dictator- 
ship; and  in  conferring  them,  the  Congress  acted 
upon  the  maxim  that  the  public  safety  is  the  su- 
preme law.  They  acted,  too,  as  if  they  were  the 
proper  judges  of  the  exigency,  and  as  if  the  powers 
they  granted  w^ere  then  rightfully  hi  their  hands. 
But  it  is  a  smgular  proof  of  the  unsettled  and  anom- 
alous condition  of  the  political  system  of  the  country. 


1  Journals,  II.  475.  A  commit- 
tee, at  the  head  of  which  was  Rob- 
ert Morris,  was  appointed  to  trans- 
mit this  resolve  to  General  Wash- 
ington, and  in  their  letter  they  said  : 
"We  find  by  these  resolves  that 
your  Excellency's  hands  will  be 
strengthened  by  very  ample  pow- 
ers ;  and  a  new  reformation  of  the 
army  seems  to  have  its  origin 
therein.  Happy  it  is  for  this 
country,  that  the  general  of  their 
forces  can  safely  be  intrusted  with 
the  most  unlimited  power,  and  nei- 
ther personal  security,  liberty,  nor 
property  be  in  the  least  degree  en- 
dangered thereby."  In  his  reply, 
the  General  said  to  the  committee  : 
"  Yours  of  the  31st  of  last  month 
inclosed  to  me  sundry  resolves  of 


Congress,  by  which  I  find  they 
have  done  me  the  honor  to  intrust 
me  wuth  powers,  in  my  military 
capacity,  of  the  highest  nature,  and 
almost  unlimited  in  extent.  Instead 
of  thinking  myself  freed  from  all 
civil  obligations,  by  this  mark  of 
their  confidence,  I  shall  constantly 
bear  in  mind,  that,  as  the  sword 
was  the  last  resort  for  the  preser- 
vation of  our  liberties,  so  it  ought 
to  be  the  first  thing  laid  aside  when 
those  liberties  are  firmly  estab- 
lished. I  shall  instantly  set  about 
the  most  necessary  reforms  in  the 
army ;  but  it  will  not  be  in  my 
power  to  make  so  great  a  progress 
as  if  I  had  a  little  leisure  time 
upon  my  hands."  Writings  of 
Washington,  IV.  257,  552. 


102  THE  FEDERAL  CONSTITUTION.  [Book  L 

and  of  the  want  of  practical  authority  in  the  conti- 
nental government,  that,  in  three  days  after  the  adop- 
tion of  the  resolves  conferring  these  powers,  the 
Congress  felt,  it  necessary  to  address  a  letter  to  the 
Governors  of  the  States,  apologizing  for  this  step. 
Nor  Avas  their  letter  a  mere  apology.  It  implied  a 
doubt  whether  the  continental  government  possessed 
a  proper  authority  to  take  the  steps  which  the  crisis 
demanded,  and  whether  the  execution  of  all  measures 
did  not  really  belong  to  the  States,  the  Congress  hav- 
ing only  a  recommendatory  power.  "Ever  attentive," 
their  letter  declared,  "  to  the  security  of  civil  liberty, 
Congress  would  not  have  consented  to  the  vestmg 
of  such  powers  in  the  military  department  as  those 
which  the  inclosed  resolves  convey  to  the  continental 
Commander-in-chief,  if  the  situation  of  public  affairs 
did  not  require,  at  this  crisis,  a  decision  and  "sdgor 
which  distance  and  numbers  deny  to  assemblies  far 
removed  from  each  other  and  from  the  seat  of  war." 
The  letter  closed,  by  requestmg  the  States  to  use  their 
utmost  exertions  to  further  such  levies  as  the  gen- 
eral might  direct,  m  consequence  of  the  new  powers 
given  him,  and  to  make  up  and  complete  their  quotas 
as  formerly  settled.^ 

Strictly  examined,  therefore,  the  position  taken  by 
the  Congress  was,  that  a  crisis  existed  demanding  the 
utmost  decision  and  vigor ;  that  the  measures  neces- 
sary to  meet  it,  such  as  the  raising  of  troops  and 
the  compidsory  levying  of  supplies,  belonged  to  the 

1  Writings  of  Washington,  IV.  551. 


Ch,  IV.l    THE  REVOLUTIONARY  GOVERNMENT.     103 

States;  but  that,  the  State  governments  bemg  removed 
from  each  other  and  from  the  seat  of  Avar,  the  Con- 
gress confers  upon  the  contmental  general  power  to 
do  thmgs  which  in  reality  it  belongs  to  the  States  to 
do.  In  this  there  was  a  great  inaccuracy,  according 
to  all  our  present  ideas  of  constitutional  power.  But 
still  the  action  of  the  Congress  expresses  and  exliib- 
its  their  real  situation.  It  contams  a  contradiction 
between  the  true  theory  of  their  revolutionary  powers 
and  the  powers  which  they  could  in  fact  practically 
exercise.  Upon  principle,  it  was  just  as  competent  to 
the  Congress  to  take  the  steps  required  by  the  exi- 
gency, as  it  was  to  adjudge  them  to  the  States;  and  it 
was  just  as  competent  to  the  Congress  to  do  any  thmg 
directly,  as  to  confer  a  power  to  do  it  on  their  gen- 
eral. But  the  jealousies  of  the  States,  the  habits  of 
the  country,  and  the  practical  w^orking  of  the  exist- 
ing institutions,  had  never  permitted  the  full  exercise 
of  the  revolutionary  powers  which  properly  resided  in 
the  hands  of  the  Congress.  The  true  theory  of  their 
situation  was  limited  by  practical  impossibilities ;  and 
an  escape  from  contradictions  became  impossible.  It 
was  perceived  that  the  States  would  neither  pass  laws 
or  resolves  for  the  summary  raising  of  forces  and 
levjdng  of  supplies,  nor  allow  this  to  be  done  by  com- 
mittees or  commissioners  of  Congress ;  but  it  was 
believed  that  they  would  acquiesce  ui  its  being  done 
by  General  Washington,  out  of  respect  for  his  char- 
acter, for  his  abilities  and  his  motives,  and  from  con- 
viction that  he  alone  could  save  the  country. 

The  expectations  of  the  Congress  w^ere  not  disap- 


10-4  THE  FEDEKAL  CONSTITUTION.  [Book  i 

pointed.  It  was  felt  throughout  the  comitiy,  that 
such  powers  could  be  lodged  in  the  hands  of  Wash- 
ington Avithout  danger.  The  States  in  general  acqui- 
esced in  the  necessity  and  propriety  of  this  measure, 
and  there  was  little  disposition  to  encroach  upon  or 
to  complain  of  the  authority  conferred.  To  this  ac- 
quiescence, however,  there  were  exceptions.-"^ 

The  period  which  now  followed  was  a  part  of  the 
interval  during  which  the  Articles  of  Confederation 
were  pendmg  in  Congress.  We  have  seen  that  the 
plan  of  a  confederation  was  reported  to  that  body  in 
July,  1776,  and  finally  adopted  for  recommendation 
to  the  States  in  November,  1777.  But  soon  after  the 
extraordinary  powers  had  been  conferred  upon  Gen- 
eral Washington,  the  attendance  of  the  members  be- 
gan to  diminish,  and  several  of  the  most  eminent 
and  able  men,  who  had  hitherto  served,  retired  from 
Congress.  In  January,  1777,  there  were  no  delega- 
tions present  from  the  States  of  Delaware  and  New 
York ;  ^  and  in  February,  the  absence  of  many  distin- 
guished men,  whose  counsels  had  been  of  vast  impor- 
tance, made  a  striking  deficiency.  The  formation  of 
the  State  governments,  and  the  local  afikirs  of  the 
States,  absorbed  for  a  time,  with  a  few  important  ex 
ceptions,  the  best  ci\il  talent  in  the  country.^ 

1  Writings  of  Washington,  IV.  der  date  of  February  27lh,  1777, 
551.  "  the  absence  from  the  public  coun 

2  Journals,  III.  35.  cils  of  America  of  Johnson,  Jay 

3  "  We  have  now  to  lament,"  R.  R.  Livingston,  Duane,  Deane, 
said  Robert  Morris,  in  a  private  W.  Livingston,  Franklin,  Dickin- 
letter  to  General  Washington,  un-  son,    Harrison,    Nelson,    Hooper 


Ch.  IV.]       THE  EEVOLUTIONARY  GOVEENMENT. 


105 


Wliile  the  personal  efficiency  and  wisdom  of  the 
Congress  thus  sensibly  declmed,  no  change  took  place 
in  the  nature  of  their  powers,  or  in  their  relations  to 
the  States,  that  would  impart  greater  "vdgor  to  their 
proceedings.  The  delegations  of  many  of  the  States 
were  renewed  m  the  winter  of  1776-7;  but  there 
was  a  great  diversity,  and  in  some  cases  a  great  vague- 
ness, m  their  instructions.^     In  such  a  state  of  thmgs, 


Rutledge,  and  others  not  less  con- 
spicuous, without  any  proper  ap- 
pointments to  fill  their  places,  and 
this  at  the  very  time  they  are  most 
wanted,  or  would  be  so,  if  they 
had  not  very  wisely  supplied  the 
deficiency  by  delegating  to  your 
Excellency  certain  powers,  that 
they  durst  not  have  intrusted  to 
any  other  man.  But  what  is  to 
become  of  America,  and  its  cause, 
if  a  constant  fluctuation  is  to  take 
place  among  its  counsellors,  and 
at  every  change  we  find  reason  to 
view  it  with  regret  ?  "  Writings 
of  Washington,  IV.  340,  note. 

1  Massachusetts,  in  December, 
1776,  renewed  the  credentials  of 
John  Hancock,  Samuel  Adams, 
John  Adams,  Robert  Treat  Paine, 
Elbridge  Gerry,  Francis  Dana, 
and  James  Lovell,  giving  power 
to  any  three  or  more  of  them,  with 
the  delegates  from  the  other  Amer- 
ican States,  to  concert,  direct,  and 
order  such  further  measures  as 
shall  to  them  appear  best  calcu- 
lated for  the  establishment  of  right 
and  liberty  to  the  American  States, 
upon  a  basis  permanent  and  secure 
against  the   power  and  art  of  the 

VOL.   I.  14 


British  administration  ;  for  prose- 
cuting the  present  war,  concluding 
peace,  contracting  alliances,  estab- 
lishing commerce,  and  guarding 
against  any  future  encroachments 
and  machinations  of  their  enemies  ; 
with  power  to  adjourn,  &c.  (Jour- 
nals, IV.  14.)  New  Hampshire 
in  the  same  month  sent  William 
Whipple,  Josiah  Bartlett,  and 
Mathew  Thornton,  making  any 
one  of  them  a  full  delegation,  with 
out  any  other  instructions  than  "  tc 
represent"  the  State  in  the  Conti- 
nental Congress  for  one  year,  and 
allowing  only  two  of  them  to  at- 
tend at  a  time.  (Ibid.  41.)  Vir- 
ginia in  the  same  month  appointed 
Mann  Page,  in  the  room  of  George 
Wythe,  with  the  same  general  in- 
structions "  to  represent "  the  State, 
(Ibid.  42.)  North  Carolina  in  the 
same  month  appointed  William 
Hooper,  Joseph  Hewes,  and  Thom- 
as Burke,  and  invested  them  "  with 
such  powers  as  may  make  any  act 
done  by  them,  or  any  of  them,  or 
consent  given  in  the  said  Congress 
in  behalf  of  this  State,  obligatory 
upon  every  inhabitant  thereof.' 
(Ibid.  37.)     South  Carolina  chos- 


lOG  THE  FEDEKAIi  CONSTITUTION.  [Book  L 

—  Avitli  no  uniform  rule  prescribing  the  powers  of 
the  Congress,  and  with  some  uncertamty  in  that  body 
itself  Avith  regard  to  its  authority  to  confer  upon  the 
Commander-in-chief  the  powers  with  which  he  was 
now  invested,  —  however  general  might  be  the  readi- 
ness of  the  country  to  acquiesce  in  their  necessity,  it 
is  not  surprising  that  State  jealousy  was  sometimes 
aroused,  or  that  it  should  have  been  unreasonable  in 
some  of  its  manifestations. 

A  striking  instance  of  this  jealousy  occurred  upon 
the  occasion  of  a  proclamation  issued  by  General 
Washington  at  Morristown,  on  the  25th  of  January, 
1777.  Sir  "William  Howe  had  published  a  procla- 
mation in  New  Jersey,  offering  protection  to  such  of 
the  inhabitants  as  would  take  an  oath  of  allegiance 
to  the  King.      Many  of  the  substantial  farmers  of 

Arthur  Middleton,  Thomas  Hay-  mit  authentic  copies  from  time  to 
ward,  Jr.,  and  Henry  Laurens,  with  time  to  the  General  Assemhly  of 
power  "to  concert,  agree  to,  and  this  State."  (Ibid.  5.)  Of  the 
execute  evei-y  measure  which  one  other  States,  Pennsylvania,  Rhode 
or  all  of  them  should  judge  neces-  Island,  New  York,  New  Jersey, 
sary  for  the  defence,  security,  or  Maryland,  and  Georgia,  which  re- 
interest  of  this  State  in  particular,  newed  their  delegations  somewhat 
and  of  America  in  general."  (Ibid.  later  in  the  year,  instructed  them 
53.)  Connecticut  sent  Roger  Sher-  simply  "  to  represent  "  the. State  in 
man,  Samuel  Huntington,  Elipha-  the  Continental  Congress  ;  and  Del- 
let  Dyer,  Oliver  Wolcott,  Richard  aware  empowered  its  delegates,  on 
Law,  and  William  Williams,  "  to  behalf  of  the  State,  "to  concert, 
consult,  advise,  and  resolve  upon  agree  to,  and  execute  any  measure 
measures  necessary  to  be  taken  and  which  they,  together  with  a  ma- 
pursued  for  the  defence,  security,  jority  of  the  Continental  Congress 
and  preservation  of  the  rights  and  should  judge  necessary  for  the  de- 
liberties  of  the  said  United  States,  fence,  security,  interest,  and  wel- 
and  for  their  common  safety  "  ;  but  fare  of  that  State  in  particular,  and 
requiring  them  "of  such  their  America  in  general."  (Ibid.  64, 
proceedings  and  resolves  to  trans-  315,  171,  109,  395,  51,  403,  86.) 


Ch.  IV.]         THE  REVOLUTIONARY  GOVERNIVIENT.  107 

the  country  had  availed  themselves  of  this  offer,  and 
had  received  protections  from  the  British  general. 
The  English-  and  Hessian  troops,  however,  made  no 
distinction  between  friends  and  foes,  but  frequently 
committed  great  outrages  both  upon  person  and 
property.  The  resentment  of  the  population  would 
have  restored  them  to  the  patriot  side ;  but  many 
who  had  taken  the  oath  of  allegiance  felt,  or  affected, 
in  consequence,  scruples  of  conscience. 

General  Washington  therefore  issued  a  counter- 
proclamation,  commandmg  all  persons  who  had  re- 
ceived the  enemy's  protection  to  repair  to  head-quar- 
ters, or  to  some  general  officer  of  the  army,  and  to 
surrender  their  protections  and  take  an  oath  of  alle- 
giance to  the  United  States  ;  —  allowing  thirty  days 
for  those  who  preferred  to  remain  under  the  protec- 
tion of  Great  Britain  to  withdi'aw  within  the  enemy's 
Imes.  This  was  considered  in  some  quarters  as  an 
undue  exercise  of  power.  The  idea  of  an  oath  of  alle- 
giance to  the  United  States,  before  the  Confederation 
was  formed,  was  regarded  by  many  as  an  absiuxlity. 
Allegiance,  it  was  said,  was  due  exclusively  to  the 
State  of  which  a  man  was  an  inhabitant ;  the  States 
alone  were  sovereign  ;  and  it  was  for  each  State, 
not  for  the  United  States,  which  possessed  no  sover- 
eignty, to  exact  this  obligation.  The  Legislature  of 
New  Jersey  were  disposed  to  treat  General  Wash- 
ington's proclamation  as  an  encroachment  on  their 
prerogatives :  and  one  of  the  delegates  of  that  State 
in  Congress  denounced  it  as  improper.-^ 

^  This  was  Mr.  Abraham  Clark,  one  of  the  signers  of  the  Declara- 


108  THE  FEDEEAL  CONSTITUTION.  [Book  T. 

This  feeling  was  shared  by  other  members ;  but 
it  is  not  to  be  doubted,  that  the  proceeding  was  a 
legitimate  exercise  of  the  authority  vested  in  the 
Commander-in-chief  He  had  been  expressly  empow- 
ered to  arrest  and  confine  persons  disaffected  to  the 
American  cause;  and  the  requiring  them  to  attend 
at  his  head-quarters  was  clearly  within  the  scope  of 
this  authority.  Moreover,  although  no  confederation 
or  political  union  of  the  States  had  been  formed  under 
a  written  compact,  yet  the  United  States  were  waging 
war,  as  a  government  regularly  constituted  by  its 
representatives  in  a  congress,  for  the  very  purpose 
of  carrying  on  such  war.  They  had  an  army  in  the 
field,  whose  officers  held  continental  commissions,  and 
were  paid  by  a  continental  currency.  They  were  ex- 
ercising certain  of  the  attributes  of  sovereignty  as  a 
belligerent  power;  and  in  that  capacity  they  had  a 
complete  right  to  exact  such  an  obligation  not  to  aid 
the  enemy,  as  would  separate  their  friends  from  their 
foes.  It  was  a  military  measure ;  and  the  tenor  of  the 
proclamation  shows  that  General  Washington  exacted 
the  oath  in  that  relation.  To  pause  at  such  a  moment, 
and  to  consider  nicely  how  much  sovereignty  resid- 
ed in  each  of  the  States,  and  how  much  or  how  little 
belonged  to  the  United  States,  was  certainly  a  great 
refinement.  But  it  marks  the  temper  of  the  times, 
and  the  extreme  jealousy  with  which  all  continental 
power  and  authority  were  watched  at  that  period.^ 

lion  of  Independence.     Mr.  Sparks      ject.      Writings   of   Washington, 

has  preserved  a  curious  letter  writ-      IV.  298. 

ten  by  this  gentleman  on  the  sub-  i  The  whole  of  this  alarm  evi- 


Ch.  IV.  1 


THE  REVOLUTIONARY  GOVERMIENT. 


109 


We  have  seen  that  the  powers  conferred  upon 
General  Washuigton  authorized  him  to  raise,  m  the 
most  speedy  and  effectual  manner,  sixteen  battalions 
of  uifantry,  m  addition  to  those  before  voted  by  Con- 
gress, three  regiments  of  artillery,  and  a  corps  of 
engineers ;  and  also  to  apply  to  any  of  the  States  for 


dently  arose  from  the  use  of  the 
words  "  oath  of  allegiance "  in 
General  Washington's  proclama- 
tion. Probably  this  phrase  was 
used  by  him  as  a  convenient  de- 
scription of  the  obligation  which 
he  intended  to  exact.  He  did  not 
use  it  as  a  jurist,  but  as  a  general 
and  a  statesman.  In  a  letter  writ- 
ten by  him  on  the  5th  of  February 
(1777)  to  the  President  of  Con- 
gress, desiring  that  body  to  urge 
the  States  to  adopt  an  oath  of  fidel- 
ity, he  said :  "  From  the  first  in- 
stitution of  civil  government,  it 
has  been  the  national  policy  of  ev- 
ery precedent  state  to  endeavor  to 
engage  its  members  to  the  dis- 
charge of  their  public  duty  by  the 
obligation  of  some  oath"  ;  and  he 
then  observes,  with  his  characteris- 
tic wisdom,  that  "an  oath  is  thfe. 
only  substitute  that  can  be  adopted 
to  supply  the  defect  of  principle. ' ' 
He  advised  that  every  State  should 
fix  upon  some  oath  or  affirmation 
of  allegiance,  to  be  tendered  to  all 
the  inhabitants  without  exception, 
and  to  outlaw  those  that  refused  it. 
(Writings,  IV.  311,  312.)  After- 
wards, when  the  Legislative  Council 
of  New  Jersey —  where  some  of  the 
people  had  refused  to  take  the  oath 
required  by  his  proclamation  —  ap- 


plied to  him  to  explain  the  nature 
of  the  oath,  and  to  be  furnished 
with  a  copy  of  it,  that  they  might 
know  whether  it  was  the  oath  pre 
scribed  by  the  General  Assembly 
of  that  State,  he  informed  them 
that  he  had  prescribed  no  form,  and 
had  reverted  to  none  prescribed  by 
them  ;  that  his  instructions  to  the 
brigadiers  vi'ho  attended  to  that 
duty  were,  to  insist  on  nothing 
more  than  an  obligation  in  no  man- 
ner to  injure  the  States;  and  that 
he  had  left  the  form  to  his  subordi- 
nates ;  but  that  if  he  had  known  of 
any  form  adapted  to  the  circum-' 
stances  of  the  inhabitants,  he  would 
certainly  have  ordered  it.  (Ibid, 
319,  note.)  This  explanation  makes 
it  quite  certain,  that  what  General 
Washington  called  in  his  procla- 
mation an  oath  of  allegiance  was 
merely  a  military  exaction  of  an 
obligation  in  favor  of  a  belligerent 
power  against  the  enemy  ;  and  his 
advice  on  the  subject  of  a  general 
civil  oath  of  allegiance,  to  be  ex- 
acted by  the  States,  shows  that  he 
understood  the  niceties  of  the  sub- 
ject as  well  as  any  casuist  in  or 
out  of  Congress.  This  topic  may 
be  dismissed  by  reverting  here  to 
the  fact,  that  in  February,  1778, 
Congress    prescribed    an    oath   or 


110  THE  FEDERAL  CONSTITUTION.  [Book  I. 

the  aid  of  their  militia  when  wanted.^  At  the  period 
when  he  addressed  himself  to  this  great  undertaking 
of  forming  a  new  army,  for  the  third  time,  the  ex- 
isting force  which  he  had  with  him  in  and  aronnd 
New  Jersey  was  about  to  be  dissolved.  The  addi- 
tional regiments  of  the  regular  line  were  to  be  raised 
by  the  States,  and  upon  them  alone  could  he  depend 
for  the  supply  of  a  new  army,  with  which  to  com- 
mence the  campaign  in  the  spring  of  1777.  He  had 
labored,  he  said,  ever  since  he  had  been  in  the  ser- 
vice, to  discourage  all  kmds  of  local  attachments  and 
distinctions  of  country,  denominating  the  whole  by 
the  greater  name  of  American  ;  but  he  had  found 
it  impossible  to  overcome  prejudices. 

Two  causes  especially  embarrassed  his  efforts  in 
the  formation  of  the  new  army;  and  both  of  them 
show  how  powerful  were  the  centrifugal  forces  of 
our  system  at  that  period,  and  how  little  hold  that 
great  central  name  had  taken  upon  the  people  of  the 
different  States.  One  of  these  causes  was  the  per- 
sistence of  some  of  the  States  in  giving  extra  boun- 
ties to  encourage  enlistments  uito  their  quotas  of  the 
original  eighty-eight  battalions  not  yet  raised.  The 
bounty  allowed  by  Congress  was  twenty  dollars  to 
.every  soldier  enlisting  into  the  new  establishment  for 

affirmation,  to  be  taken  by  the  offi-  tain,  and  defend  them  against  King 
cars  of  the  army,  and  all  others  George  III.  and  his  successors,  and 
holding  office  under  Congress,  to  serve  the  United  States  in  the 
which  was  simply  a  renunciation  office  mentioned  with  fidelity,  and 
of  allegiance  to  the  King  of  Great  the  best  skill  and  understanding  of 
Britain,  an  acknowledgment  of  the  the  party  taking  the  oath.  Jour- 
independence  of  the  United  States,  nals,  IV.  49. 
and  a  promise  to  support,  main-  ^  Ante,  p.  100 


Cii.  IV.]   THE  EEVOLUTIONARY  GOVERNMENT.      Ill 

three  years  or  during  the  war.  The  additional  boun- 
ty offered  by  Massachusetts  was  sixty-six  dollars  and 
two  thirds.  There  was  thus  an  inducement  of  eighty- 
six  dollars  and  two  thirds  offered  to  the  men  then 
in  the  ser\ice  of  the  United  States,  not  to  reenlist 
in  their  old  regiments,  as  fast  as  their  time  of  ser- 
vice expired,  but  to  go  to  Massachusetts  and  enlist 
in  the  fresh  quotas  which  were  forming  in  that  State, 
and  which  were  to  be  afterwards  mustered  into  the 
continental  ser\ice.  The  same  inconsiderate  and 
unpatriotic  policy  w^as  pursued  in  all  the  Eastern 
States,  and  before  the  spring  opened,  the  consequen- 
ces began  to  be  felt  in  the  state  of  the  new  continen- 
tal battalions  which  General  Washington  was  en- 
deavoring to  procure  from  some  of  the  Middle  States, 
and  in  which  he  would  not  sanction  the  allowance 
of  an  extra  bounty,  regarding  it  as  an  indirect  breach 
of  the  union,  and  of  the  agreement  entered  into  by 
the  delegates  of  the  States  in  Congress  to  give  a 
boimty  of  twenty  dollars  only  for  service  in  the  con 
tinental  army.-^  The  month  of  April  arrived,  and  he 
had  not  received  a  man  of  the  new  levies,  except  a 
few  hundreds  from  Jersey,  Pennsylvania,  and  Vir- 
ginia, while  the  few  old  regiments  which  remained, 
after  the  dissolution  of  the  army  in  January,  w^ere 
reduced  to  a  handful  of  men,  the  enemy  being  in 
great  force,  and  making  every  preparation  to  seize 
upon  Philadelphia. 

Nor  did  the  allowance  of  these  irregidar  bounties 

1  Letter  to  General  Knox,  February  11,  1777.     Writings,  IV.  316. 


112  THE  FEDERAL  CONSTITUTION.  [Book  1. 

help  the  States,  m  raising  the  old  le\T.es,  as  had 
been  anticipated.  They  rather  caused  the  soldiers  to 
set  a  high  price  upon  themselves,  and  to  hold  back 
from  enlisting ;  while  the  second  cause,  to  which  I 
have  alluded,  as  embarrassing  the  Commander-m- 
chief,  was  a  great  hinderance  to  his  efforts  to  plan 
and  carry  out  a  campaign,  having  for  its  object  the 
general  benefit  of  the  whole  Union. 

This  cause  was  the  mability  of  many  local  authoi 
ities  to  comprehend  the  necessity  of  such  a  campaign 
General  Washington  was,  at  this  period,  harassed  by 
numerous  applications  to  allow  the  troops,  which  had 
been  raised  in  the  States  for  the  service  of  the  conti- 
nent, to  remam  for  the  defence  of  particular  neighbor- 
hoods against  incui'sions  of  the  enemy.  Nothing, 
he  said  on  one  of  these  occasions,  could  exceed  the 
pleasure  which  he  should  feel,  if  he  were  able  to  pro- 
tect every  town  and  every  individual  on  the  continent. 
But  as  this  was  a  pleasure  which  he  never  should 
realize,  and  as  the  contuiental  forces  were  wanted  to 
meet  and  counteract  the  main  designs  of  the  enemy 
on  the  principal  theatre  of  the  war,  he  could  not  con- 
sent to  divide  them  and  detach  them  to  every  point 
where  the  enemy  might  possibly  attempt  an  impres- 
sion; "for  that,"  he  added,  "would  be  in  the  end  to 
destroy  ourselves  and  subjugate  our  country."^ 

From  the  operation  of  these  and  other  causes  con- 
nected with  the  political  system  of  the  country,  the 
army  with  which  Washington  was  obliged  to  take 

1  Letter  to  Governor  Trumbull,      See  also  Letter  to  Major-General 
May  11,  1777.     Writings,  IV.  413.       Stephen,  May  21,  1777.    Ibid.  431 


Ch.  IV.J        the   REVOLUTIONAEY   GOVERNIMENT,  113 

the  field,  in  the  sprmg  of  1777,  did  not  exceed  five 
thousand  seven  hundred  and  thirty-eight  effective 
men,  exclusive  of  a  small  body  of  cavalry  and  artil- 
lery.^ The  consequence  was,  a  necessary  rehance 
upon  militia,  to  a  great  extent,  throughout  that  sum- 
mer. The  battle  of  the  Brandpvine,  fought  with  an 
efiective  force  of  only  ele^s^en  thousand  men,  includ- 
ing militia,  against  a  thorouglily  disciphned  army  of 
fifteen  thousand  British  and  Hessian  troops,  and 
fought  for  the  city  of  Philadelphia  as  a  stake,  was 
lost  on  the  11th  of  September.^  The  Congress  broke 
up  on  the  18th.  Sir  William  Howe  took  possession 
of  the  city  on  the  26th ;  and  on  the  27th,  the  Con- 
gress reassembled  at  Lancaster.  In  a  few  days,  they 
removed  to  Yorkto^^ni,  where  their  sessions  continued 
to  be  held  for  several  months. 

The  position  «in  which  they  found  themselves, 
amid  the  dark  clouds  wliich  lowered  around  their 
cause,  seems  to  have  recalled  to  their  recollection  the 
Ai*ticles  of  Confederation,  which  had  lain  slumbering 
upon  theu'  table  smce  the  8th  of  April.  On  that 
day,  they  had   resolved  that  the  report  should   be 

1  Marshall's  Life  of  Washing-  Justice  IMarshall  states  it  to  have 
ton,  ni.  102.  been,  on  this  occasion,  11,000,  in- 

2  The  exact  numbers  of  the  troops  eluding  militia.  The  Annual  Reg- 
on  both  sides,  in  this  battle,  are  not  ister  gives  the  number  of  the  royal 
known.  Sir  William  Howe  esti-  army  brought  into  action  as  15,000. 
mated  the  American  force  at  15,000,  Marshall  supposes  it  to  have  been 
including  militia  ;  and  this  number  18,000,  when  they  landed  on  the 
is  given  in  the  Annual  Register.  shores  of  the  Chesapeake.  Mar- 
But  the  effective  force  of  the  Amer-  shall's  Life  of  Washington,  IIL 
ican  army  was  always,  at  this  pe-  140,  141.  Annual  Register  for 
riod  of  the  war,  considerably  less  1777,  XX.  127. 

than  the  total  number  ;  and  Chief 
VOL.   I.  *■  15 


114  THE  FEDERAL  CONSTITUTION.  [Book  I 

taken  into  consideration  on  the  following  Monday, 
and  that  two  days  in  each  week  should  be  employed 
on  the  subject,  until  it  had  been  wholly  discussed. 
When  the  Monday  came,  it  was  postponed ;  and  it 
was  only  after  they  had  been  driven  from  Philadel- 
phia by  the  ajoproach  of  the  enemy,  that  they  seem 
to  have  fully  realized  the  fact,  that,  without  a  more 
perfect  union  and  a  more  efficient  government,  the 
country  could  not  be  saved.  As  soon  as  they  had 
reassembled  at  Yorktown,  after  the  urgent  business 
of  the  moment  had  been  attended  to,  they  passed  a 
resolve,  on  the  2d  of  October,  that  the  Articles  of 
Confederation  be  taken  into  consideration  the  next 
day,  at  eleven  o'clock.  The  discussion  did  not  actu- 
ally commence,  however,  until  the  7th  of  October; 
but  from  that  day  it  was  continued  until  the  17  th  of 
November,  when  the  Articles,  as*  they  afterwards 
went  into  o]3eration,  were  adopted  for  recommenda- 
tion to  the  States,  and  a  circular  letter  was  addressed 
to  the  several  legislatures,  submitting  the  plan  of  a 
confederacy,  and  urging  its  adoption. 

We  are  now  approachmg  the  period  when  the 
American  people  began  to  perceive  that  something 
more  was  necessary  to  their  safety  and  happiness 
'  than  the  formation  of  State  governments ;  —  when 
they  found,  or  were  about  to  find,  that  some  digested 
system  of  national  government  was  essential  to  the 
great  objects  for  which  they  were  contending;  and 
that,  for  the  formation  of  such  a  government,  other 
arrangements  than  the  varying  instructions  of  differ 


Ch.  IV.]         THE  EEVOLUTIONARY   GOVERNMENT.  115 

ent  colonies  or  states  to  a  body  of  delegates  were 
indispensable.  The  previous  illustrations,  drawn  from 
the  civil  and  military  history  of  the  country,  have 
been  employed  to  show  the  character  and  operation 
of  the  revolutionary  government,  the  end  of  which 
is  drawing  near.  For  we  have  seen  that  the  great 
purpose  of  that  government  was  to  secure  the  uide- 
pendence  of  each  of  these  separate  communities  or 
states  from  the  croTvn  of  Great  Britain ;  that  it  was 
instituted  by  political  societies  having  no  direct  con- 
nection "with  each  other  except  the  bond  of  a  com- 
mon danger  and  a  common  object ;  and  that  it  was 
formed  by  no  other  instrumentality,  and  possessed 
no  other  agency,  than  a  single  body  of  delegates 
assembled  in  a  congress.  For  certain  great  pur- 
poses, and  in  order  to  accomplish  certain  objects  of 
common  interest,  a  union  of  the  people  of  the  differ- 
ent States  had  indeed  taken  place,  bringing  them 
together  to  act  through  their  representatives ;  but 
this  miion  was  now  failing,  from  the  want  of  defi- 
nite powers;  from  the  unwillingness  of  the  people 
of  the  country  to  acquiesce  in  the  exercise  of  the 
general  revolutionary  powers  mth  which  it  was  im- 
pliedly clothed ;  and  from  the  want  of  suitable  civil 
machinery.  In  truth,  the  revolutionary  government 
was  breaking  down,  through  its  inherent  defects,  and 
the  peculiar  infelicity  of  its  situation.  Above  all, 
it  was  breaking  down  from  the  want  of  a  civil  ex- 
ecutive to  take  the  lead  in  assuming  and  exercis- 
ing the  powers  implied  from  the  great  objects  for 
which  it  was  contending.     Its  legislative  authority, 


116  THE  FEDERAL  CONSTITUTION.  IBook  I, 

although  defined  in  no  written  instruments  or  pub- 
lic charters,  was  sufficient,  under  its  implied  general 
powers,  to  have  enabled  it  to  issue  decrees,  directing 
the  execution,  by  its  own  agents,  of  all  measures 
essential  to  the  national  safety.  But  this  authority 
was  never  exercised,  partly  because  the  States  were 
unwilling  to  execute  it,  but  chiefly  because  no  ex- 
ecutive agency  existed  to  represent  the  continental 
power,  and  to  enforce  its  decrees. 

It  is  a  singular  circumstance,  that,  while  the  revo- 
lutionary government  was  left  to  conduct  the  great 
affairs  of  the  contment  through  the  mere  instrumen- 
tality of  a  congress  of  delegates,  and  was  thus  failing 
for  the  want  of  departments  and  powers,  the  States 
were  engaged  in  applying  those  great  principles  m 
the  organization  and  construction  of  popular  gov- 
ernments, under  which  they  may  be  formed  with 
rapidity  and  ease,  and  which  are  capable  of  the 
most  varied  adaptation  to  the  circumstances  and 
wants  of  a  free  people. 

The  suppression  of  the  royal  authority  throughout 
the  colonies,  by  virtue  of  the  resolve  of  the  Conti- 
nental Congress  passed  on  the  10th  of  May,  1776, 
rendered  necessary  the  formation  of  local  govern- 
ments, capable  at  once  of  answering  the  ends  of 
pohtical  society,  and  of  continuing  mthout  interrup- 
tion the  protection  of  law  over  property,  life,  and 
public  order.  Fortunately,  as  we  have  seen,  the  pre- 
vious constitutions  of  all  the  colonies  had  accustomed 
the  people,  to  a  great  extent,  to  the  business  of  gov- 


Cn.  IV.]        THE  REVOLUTIONARY  GOVERNIVIENT.  117 

emment ;  and,  when  the  recommendation  of  the  Con- 
tinental Congress  to  the  several  colonies  to  adopt 
such  governments  as  would  best  conduce  to  their 
happiness  and  safety  was  made  immediately  after  the 
first  effusion  of  blootl,  it  was  addressed  to  civil  socie- 
ties, in  which  the  people  had,  in  different  modes, 
been  long  accustomed  to  witness  and  to  exercise  the 
functions  of  legislation,  and  in  aU  of  which  there 
were  established  forms  of  law,  of  judicature,  and  of 
executive  power. 

The  new  political  situation  in  which  they  now  found 
themselves  required,  in  many  of  the  colonies,  but 
little  departui'e  from  these  ancient  institutions.  The 
chief  innovation  necessary  was,  to  bring  into  practi- 
cal working  the  authority  of  the  people,  in  place  of 
that  of  the  crown  of  England,  as  the  source  of  all 
political  power.  The  changes  requisite  to  effect  this 
were  of  course  to  be  made  at  once ;  the  materials  for 
these  changes  existed  every^vhere,  in  the  representa- 
tive institutions  which  had  been  long  a  part  of  the 
system  of  every  colony  since  the  first  settlement  of 
the  countr}\  Thus,  as  we  have  seen,  m  aU  the  pro- 
vincial, the  proprietary,  and  the  charter  governments, 
the  freemen  of  the  colony  had  been  accustomed  to  be 
represented  in  the  government,  in  some  form;  and 
although  those  governments,  with  a  few  exceptions, 
were  under  the  direct  or  indirect  restraint  of  the 
crow^i,  and  coid.d  all  be  reached  and  controlled  by 
the  exercise  of  arbitrary  power,  the  practice  of  repre- 
sentation, through  popular  elections,  was  everywhere 
knoAvn  and  familiar.     The  old  constitutions  of  some 


118  THE  FEDEEAL  CONSTITUTION.  [Book  I 

of  the  colonies  had  also  been  highly  democratic,  ad- 
mittmg  an  election  of  the  executive,  as  well  as  of  the 
legislature,  directly  by  the  people ;  ^  while,  in  others, 
where  the  executive  was  appomted  by  the  crown, 
the  second  or  less  numerous  branch  of  the  legisla- 
ture had  been  elected  by  the  people,  either  directly, 
or  indirectly  through  the  popular  assembly.  The 
foundations,  therefore,  for  popular  governments  ex- 
isted in  all  the  colonies,  and  furnished  the  means  for 
substituting  the  new  source  of  political  power,  the 
will  of  the  people,  in  the  place  of  that  of  an  exter- 
nal sovereign. 

But  there  were  other  materials,  also,  for  the  for- 
mation of  regular  and  balanced  governments,  with 
nearer  approaches  to  perfection  and  with  far  greater 
completeness  than  a  mere  democracy  can  afford  to 
any  people,  however  familiar  they  may  be  with  the 
exercise  and  the  practice  of  government.  The  peo- 
ple of  these  colonies  had  been  so  trained  as  to  be 
able  to  apply  those  principles  in  the  construction  and 
operation  .of  government  Avhich  enable  it  to  work 
freely,  successfully,  and  vdsely,  while  resting  on  a 
popular  basis.  They  Avere  able  to  see,  that  the  whole 
of  what  is  meant  and  understood  by  government  is 
comprehended  in  the  existence  and  due  operation 
of  legislative,  executive,  and  judicial  powers.^  They 
had  lived  under  political  arrangements,  in  Avhich 
these  powers  had  been  distributed  so  as  to  keep  them 
for  the  most  part  distinct  from  each  other,  and  so  as 

1  Connecticut    and    Rhode    Isl-  ^  See  John  Adams's  letter  to  R. 

and.  n.  Lee. 


Ch.  IV. J        THE  EEVOLUTIOXARY   GOVERNMENT. 


119 


to  mark  the  proper  limitations  of  each.  If,  in  some 
instances,  the  same  individuals  had  exercised  more 
than  one  of  these  powers,  the  distinctions  between 
the  departments,  and  the  principles  which  ought  to 
regulate  such  distinctions,  had  become  knoA\Ti.  The 
people  of  the  colonies,  in  general,  therefore,  saw  that 
nothmg  was  so  important,  in  constructing  a  govern- 
ment Avith  popular  institutions,  as  to  balance  each  of 
these  departments  agamst  the  others,  so  as  to  leave 
to  neither  of  them  uncontrolled  and  u-responsible 
power.  In  general,  too,  they  understood,  and  had 
always  been  accustomed  t)  the  apphcation  of  that 
other  fundamental  principle,  essential  to  a  well-reg- 
ulated liberty,  the  di\dsion  of  the  legislative  powder 
between  two  separate  chambers,  having  distinct  ori- 
gins and  of  distinct  constructions.-^ 


>  Three  of  the  colonies,  namely, 
New  Hampshire,  South  Carolina, 
an(J  Virginia,  proceeded  to  form 
constitutions  of  government  before 
the  Declaration  of  Independence 
was  adopted,  under  a  special  rec- 
ommendation given  to  each  of  them 
by  Congress,  in  the  latter  part  of 
the  year  1775,  addressed  to  the  pro- 
vincial convention,  advising  them 
"  to  call  a  full  and  free  representa- 
tion of  the  people,  to  establish  such 
a  form  of  government  as  in  their 
judgment  will  bestpromote  the  hap- 
piness of  the  people,  and  most  ef- 
fectually secure  good  order  in  the 
province  during  the  continuance  of 
the  present  dispute  between  Great 
Britain  and  the  colonies."  (Jour- 
nals, I.  231,  235,  279.)     In  Ne\r 


Hampshire,  this  suggestion  was 
carried  out  in  January,  1776,  by 
the  representatives  of  the  people, 
who  had  first  met  as  a  Provincial 
Congress  of  deputies  from  the  towns, 
and  then  assumed  the  name  and 
authority  of  a  "house  of  repre- 
sentatives," or  "  assembly"  of  the 
Colony ;  in  which  capacity  they 
proceeded  to  elect  twelve  persons 
from  the  several  counties,  to  form 
a  distinct  branch  of  the  legislature, 
as  a  council.  The  council  were  to 
elect  their  own  presiding  officer. 
All  acts  and  resolves,  to  be  valid, 
were  required  to  pass  both  branches ; 
all  public  officers,  except  clerks  of 
courts,  were  to  be  appointed  by 
the  two  houses,  and  all  money  bills 
were  to  originate  in   the  populai 


120 


TIIE   FEDERAL   CONSTITUTION. 


[Book  I. 


But  none  of  these  ideas  Avere  applied,  or  were  yet 
thought  of  being  applied,  to  the  construction  of,  a 
government  for  the  United  States ;  and  it  is  there- 
fore at  this  period  that  we  are  to  observe  the  slow 
progress  making,  through  disaster  and  trial,  to  those 
great  discoveries  which  led  the  way  to  the  Consti- 
tution, and  that  we  are  to  mark  the  first  of  those 
failures  by  which  the  people  of  America  learnt  the 
bitter  wisdom  of  experience.  For  the  fate  of  the  rev- 
olutionary government  presents  the  first  illustration 
in  our  history  of  the  complete  futUity  of  a  federa- 
tive union,  whose  operation  as  a  government  should 


oranch.  In  case  the  dispute  with 
Great  Britain  should  continue  long- 
er than  the  year  1776,  and  the  gen- 
eral Congress  should  not  give  other 
instructions,  it  was  provided  that 
the  council  should  be  chosen  by  the 
people  of  each  county,  in  a  mode  to 
be  prescribed  by  the  council  and 
house.  This  form  of  government 
continued  through  the  Revolution, 
and  until  the  year  1790,  when  a 
new  constitution  was  formed.  (Pit- 
kin's History  of  the  United  States, 
II.  294.)  In  South  Carolina,  the 
Provincial  Congress  likewise  re- 
solved itself  a  "  general  assembly," 
and  elected  a  legislative  council, 
from  their  own  body.  By  these 
two  bodies,  acting  jointly,  an  ex- 
ecutive, styled  a  president,  a  com- 
mander-in-chief, and  a  vice-presi- 
dent, was  chosen.  The  legisla- 
tive authority  was  vested  in  the 
president  and  the  two  houses.  The 
judiciary  were  elected  by  the  two 
houses  and  commissioned   by   the 


president,  and  were  to  hold  their 
offices  during  good  behavior,  sub- 
ject to  removal  on  the  address  of 
both  houses.  This  form  of  gov 
ernment  remained  until  June, 
1790,  when  a  new  constitution  was 
formed  by  a  convention.  On  the 
15th  of  May,  1776,  the  Provincial 
Convention  of  Virginia  proceeded 
to  prepare  a  declaration  of  rights 
and  a  constitution.  The  latter  de- 
clared tliat  the  legislative,  execu- 
tive, and  judiciary  departments 
ought  to  be  distinct  and  separate, 
and  divided  the  legislative  depart- 
ment into  two  branches,  the  house 
of  delegates  and  the  senate,  to  be 
called  "  the  General  Assembly  of 
Virginia."  The  members  of  the 
house  of  delegates  were  chosen 
from  each  county,  and  one  fiom 
the  city  of  Williamsburg  and  one 
from  the  borough  of  Norfolk. 
The  senate  consisted  ui  twenty- 
four  members,  chosen  from  as 
many  districts.      A   governor  and 


Ch.  IV.]   THE  REVOLUTIONARY  GOVERNMENT. 


121 


consist  merely  in  agreeing  upon  measures  in  a  gen- 
eral council,  leaving  the  execution  of  those  measui'es 
to  the  separate  members  of  the  confederacy.  But 
this  first  illustration,  we  shall  soon  see,  was  not  suffi- 
cient to  establish  this  truth  in  the  convictions  of  the 
American  people. 

Another  and  a  severer  trial  awaited  them.  They 
^vel'e  not  only  to  be  taught  once  more  that  a  mere 
federative  union  was  a  rope  of  sand,  but  they  were 
also  to  be  taught,  that  a  government  instituted  upon 
this  prmciple  for  the  purposes  of  a  war,  in  which  the 
separate  members  of  the  confederacy  had  a  common 


council  of  state  were  chosen  annu- 
ally by  joint  ballot  of  both  houses. 
The  legislature  appointed  the 
judges,  who  were  commissioned 
by  the  governor,  and  held  their 
offices  during  good  behavior. 
Massachusetts  was  one  of  the  colo- 
fiies  whose  situation  rendered  it 
necessary  to  defer  the  formation  of 
a  constitution  for  several  years. 
The  transition  in  that  colony  from 
the  government  of  the  King  to  a 
government  of  the  people  took 
place  in  the  latter  part  of  the  year 
1774  and  the  beginning  of  1775. 
The  occurrences  which  led  the 
House  of  Representatives  to  re- 
solve themselves  into  a  Provincial 
Congress  have  been  stated  in  the 
text  of  a  previous  chapter  (ante, 
p.  26).  This  body,  which  as- 
sumed the  control  of  the  affairs  of 
the  colony  in  October,  1774,  first 
assembled  at  Cambridge,  where 
they  continued  in  session  until  the 
10th  of  December,  and  then  dis- 
VOL.    I.  IG 


solved  themselves,  having  first  ap- 
pointed a  Committee  of  Safety  to 
manage  the  public  concerns,  until 
a  new  Congress  should  be  assem- 
bled. On  the  1st  of  February, 
1775,  a  new  Provincial  Congress 
met  at  Cambridge,  adjourned  to 
Concord,  and  thence  to  Water- 
town,  and  were  dissolved  on  the 
23d  of  May.  On  the  16th  of  May, 
they  wrote  to  the  Continental  Con- 
gress, requesting  their  advice  on 
"  taking  up  and  exercising  the  pow- 
ers of  civil  government."  In  their 
letter  they  said,  "  As  the  sword 
should  in  all  free  states  be  subser- 
vient to  the  civil  powers,  and  as  it 
is  the  duty  of  the  magistrate  to 
support  it  for  the  people's  neces- 
sary defence,  we  tremble  at  having" 
an  army,  although  consisting  of 
our  own  countrymen,  established 
here,  without  a  civil  power  to  pro- 
vide for  and  control  them."  On 
the  9th  of  June,  the  Continental 
Congress  passed  a  resolve,  recom- 


122 


THE  FEDERAL   CONSTITUTION. 


[Book  L 


interest,  would  not  answer  the  exigencies  of  a  coun- 
try like  this,  in  tune  of  peace.  They  were  to  learn, 
by  a  trymg  experience,  that  the  vast  concerns  of 
peace  are  far  more  complex  than  the  concerns  of 
war ;  that  there  were  important  functions  of  govern- 
ment to  be  discharged  upon  this  continent,  which 
only  national  power  and  national  authority  can  ac- 
complish, and  that  those  functions  are  essential,  not 
only  to  the  prosperity  and  happiness  of  this  nation, 
but  to  the  continued  existence  of  republican  liberty 
within  the  States  themselves.  They  were  to  learn 
this  through  a  state  of  things  verging  upon  anarchy ; 
amidst  the  decay  of  public  virtue-;  the  conflict  of  sec- 


mending  the  election  of  a  new  Gen- 
eral Assembly,  under  the  directions 
of  the  Provincial  Congress,  and  that 
the  Assembly,  when  chosen,  should 
exercise  the  powers  of  government, 
until  a  governor  of  the  King's  ap- 
pointment would  consent  to  govern 
the  Colony  according  to  its  char- 
ter. (Journals,  I.  115.)  Mean- 
while, a  third  Provincial  Congress 
met  at  Watertown,  on  the  31st  of 
May,  and  sat  until  the  19th.  The 
new  General  Assembly  of  the  Prov- 
ince, called  "  the  General  Court," 
after  its  ancient  usage,  met  in  the 
mode  provided  by  the  charter,  and 
elected  a  council.  These  two 
.branches  continued  to  administer 
the  government,  as  nearly  in  the 
spirit  of  the  charter  as  might  be, 
without  a  governor,  until  1780, 
when  a  convention  was  called  and 
a  constitution  framed,  similar  in 
all  its  main  features  to  the  present 
constitution  of  the    State.      The 


constitutions  of  the  other  States 
were  formed  under  the  general  rec- 
ommendation of  the  resolve  of  Con- 
gress of  May  10th,  1776,  addressed 
to  all  the  colonies,  which  contem- 
plated the  formation  of  permanent 
governments,  and  dissolved  the  al 
legiance  of  the  people  to  the 
crown  of  Great  Britain.  The  con 
stitutions  of  New  Jersey,  Mary- 
land, Delaware,  and  North  Caro- 
lina were  formed  in  1776,  and  that 
of  New  York  in  April,  1777;  all 
having  three  branches,  the  legisla- 
tive, the  executive,  and  the  judi- 
ciary, and  all  having  a  legislature 
consisting  of  two  houses.  The 
constitution  of  Georgia  was  formed 
in  1789,  after  the  same  general 
model.  That  of  Pennsylvania  was 
formed  in  1776,  with  a  legislature 
consisting  of  a  single  branch,  but 
with  the  like  division  of  the  legis- 
lative, executive,  and  judicial  de* 
partments. 


Cii.  IV.]    THE  REVOLUTIONARY  GOVERNMENT.      123 

tional  interests ;  and  the  almost  total  dissolution  of 
the  bands  by  which  society  is  held  together.  In  this 
state  of  things  was  to  be  at  last  developed  the  funda- 
mental idea  on  which  the  Constitution  of  the  United 
States  now  rests,  —  the  political  union  of  the  people 
of  the  United  States,  as  distinguished  from  a  union 
of  the  States  of  which  they  are  citizens. 

"We  have,  therefore,  now  reached  the  first  stage 
in  the  constitutional  history  of  the  country.  What 
has  thus  far  been  stated  comes  to  a  single  pomt, 
the  earliest  great  illustration  of  the  radical  defects 
in  a  purely  federative  union.  The  next  stage  which 
succeeds  presents  the  second  illustration  of  this 
important  truth. 


CHAPTER  Y. 

NovEBiBER,  1777  —  March,  1781. 

Adoption  of  the  Articles  of  Confederation.  —  Cessions  of  West 
ERN  Territory. — First  Political  Union  of  the  States. 

We  have  now  to  examine  the  period  which  inter- 
vened between  the  recommendation  of  the  Confedera- 
tion by  Congress,  in  November,  1777,  and  its  final 
adoption  by  all  the  States,  in  March,  1781 ;  — a  pe- 
riod of  three  years  and  a  half  The  causes  which 
protracted  the  final  assent  of  the  States  to  the  new 
government,  and  the  mode  in  which  the  various  ob- 
jections were  at  length  obviated,  are  among  the  most 
important  topics  in  our  constitutional  liistory.  But, 
before  they  are  examined,  the  order  of  events  by 
which  the  Confederation  finally  became  obligatory 
upon  all  the  States  should  here  be  stated. 

The  last  clause  of  the  Articles  of  Confederation 
directed  that  they  should  be  submitted  to  the  legis- 
latures of  all  the  States  to  be  considered;  and  if 
approved  of  by  them,  they  were  advised  to  authorize 
their  delegates  to  ratify  the  instrument  in  Congress ; 
upon  which  ratification,  it  w^as  to  become  binding 
and  conclusive.  On  the  20th  of  June,  1778,  a  call 
was  made  in  Congj-ess  for  the  report  of  the  delega- 


Ch.  v.]  the  contedeeation.  125 

tions  on  the  action  of  their  several  States,  and  on  the 
26th  of  the  same  month  a  form  of  ratification  was 
adopted  for  signature.  On  the  9th  of  July,  the  rati- 
fication was  signed  by  the  delegates  of  eight  States ; 
New  Hampshire,  Massachusetts,  Rhode  Island,  Con- 
necticut, New  York,  Pennsylvania,  Vii'ginia,  and 
South  Carolina.  North  Carolina  ratified  the  Articles 
on  the  21st  of  July;  Georgia  on  the  24th;  New 
Jersey  on  the  26th  of  November ;  Delaware  on  the 
5th  of  May,  1779  ;  Maryland  on  the  1st  of  March, 
1781.  On  the  2d  of  March,  1781,  Congress  met 
under  the  Confederation. 

Undoubtedly  one  of  the  causes  which  deferred  the 
full  adoption  of  the  Confederation  to  so  late  a  period 
after  it  was  proposed,  was  the  absence  from  Congress 
of  many  of  the  most  important  and  able  men,  whose 
attention  had  hitherto  been  devoted  to  the  affairs  of 
the  continent,  but  who  began  to  be  occupied  A\ith 
local  affau's,  soon  after  the  extraordinary  powers 
were  conferred  upon  General  Washington.  In  Oc- 
tober, 1777,  Hancock  left  the  chaii-  of  Congress,  for 
an  absence  of  two  months ;  and  the  votes  on  a  reso- 
lution of  thanks  to  him,  for  his  services  as  presiding 
officer,  show  a  great  paucity  of  talent  in  Congress  at 
that  moment.-'     Twenty-two  members  only  were  pres- 


1  Hancock  retired  on  the  31st  moved,   as  soon   as  he   had  con- 

of  October,   for  a  short  absence,  eluded  his  address ;  but  before  the 

after    an    unremitted    service    of  question  was  put,  it  was  moved 

two    years    and    five    months    in  "to  resolve  as  the  opinion  of  Con 

the  chair.     A  vote  of  thanks  was  gress,  that  it  is  improper  to  thank 


126  THE  FEDERAL  CONSTITUTION.  [Book  I 

ent,  and  of  these  the  only  names  much  known  to 
fame,  at  that  time  or  since,  were  those  of  Samuel 
Adams,  John  Adams,  and  Elbridge  Gerry  of  Massa- 
chusetts, the  two  Lees  of  Virginia,  Hayward  and 
Laurens  of  South  Carolina,  and  Samuel  Chase  of 
Maryland.  Franldin,  Arthur  Lee,  and  Silas  Deane 
were  then  in  France.  Patrick  Henry  was  Governor 
of  Virginia.  Mr.  Jefferson  was  in  the  legislature  of 
Virginia,  having  left  Congress  in  September,  in  or- 
der, as  he  has  himself  recorded,  to  reform  the  legis- 
lation of  the  State,  which,  under  the  royal  govern- 
ment, was,  he  says,  fall  of  vicious  defects.^  Mr. 
Madison  was  also  m  the  legislature  of  his  native 
State,  a  young  man  of  great  promise,  but  unknown 
at  that  time  as  a  continental  statesman.  He  entered 
Congress  m  March,  1780. 

In  the  year  1778,  when  the  delegations  were  called 
upon  for  reports  on  the  action  of  their  several  States 
upon  the  Confederation,  and  when  the  first  objections 
to  the  Articles  were  to  be  encountered,  Hancock  had 
returned  to  Congress.  Samuel  Adams  and  Elbridge 
Gerry  were  among  his  colleagues  from  Massachusetts. 
Mr.  John  Adams  was  in  Europe,  as  Commissioner  of 
the  United  States  to  the  Court  of  France.  Dr.  Frank- 
lin was  still  abroad,  llichard  Henry  Lee  of  Virginia, 
Mr.  Laurens  and  Mr.  Hayward  of  South  Carolina, 
Roger   Sherman,    Samuel    Huntington,   and   Oliver 

any  president  for  the  discharge  of  and  five  States  voted  in  the  affirm- 

the  duties  of  that  office  "  ;  and  it  is  ative,  three   in  the   negative,  ana 

a  curious  fact,  that  on  this  motion  the   delegation  of  one   State  was 

the  States   were   equally  divided.  divided.      Journals,  III.  465-467 
The  previous  motion  was  then  put,  '  Writings  of  Jefferson,  I.  29 


Ch.  V.J  THE  COKFEDERATION.  127 

Wolcott  of  Connecticut,  and  Robert  Morris  of  Penn- 
sylvania, were  present.  The  rest  of  tlie  members, 
with  one  brilliant  exception,  were  not  men  of  great 
distinction,  influence,  or  capacity.  That  exception 
was  Gouverneiu'  Morris,  who  came  into  Congress 
in  January  of  this  year,  with  a  somewhat  remarkable 
youthful  reputation,  acquired  in  the  pubhc  councils 
of  New  York. 

When  this  Congress  is  compared  -with  that  of  the 
year  1776,  and  it  is  remembered  that  the  Declaration 
of  Independence  bears  the  names  of  John  Adams 
and  Robert  Treat  Paine  of  Massachusetts,  Francis 
Hopkmson  of  New  Jersey,  Benjamin  Rush  and  Dr. 
Franklin  of  Pennsylvania,  Ceesar  Rodney  of  Dela- 
ware, Samuel  Chase  of  Maryland,  George  Wythe, 
Thomas  Jefferson,  and  Benjamin  Harrison  of  Vir- 
ginia, William  Hooper  of  North  Carolina,  and 
Edward  Rutledge  and  Arthiu-  Middleton  of  South 
Carohna,  —  none  of  whom  were  now  present,  —  we 
perceive  at  once  a  strikmg  difference  in  the  two 
bodies.  This  difference  was  not  unobserved  by  those 
who  were  then  deeply  interested  in  watching  the 
com-se  of  public  affairs.  More  than  once  it  filled 
Washington  with  dark  forebodings;^  and  in  the 
early  part  of  the  year  1778,  it  had  attracted  the 
notice  of  Hamilton,  whose  vigilant  comprehension 
surveyed  the  whole  field  of  public  affair's,  and  de- 
tected the  causes  of  every  danger  that  threatened  the 
health  of  the  body  politic.^ 

1  Writings  of  Washington,  V.  ~  "America  once  had  a  repre- 

326,  327,  350.  sentation   that  would  do  honor  to 


128 


THE  FEDEEAL  CONSTITUTION. 


[Book  I. 


The  objections  made  by  the  legislatures  of  several 
of  the  States  to  the  Articles  of  Confederation  were 
found,  when  examined,  to  consist  almost  entii'ely  of 
propositions  for  mere  verbal  amendments,  chiefly  for 
the  purpose  of  rendering  the  instrument  more  clear 
All  of  these  amendments  were  rejected.     Some  of  the 


any  age  or  nation.  The  present 
falling  off  is  very  alarming  and 
dangerous.  What  is  the  cause? 
and  How  is  it  to  be  remedied'?  are 
questions  that  the  welfare  of  these 
States  requires  should  be  well  at- 
tended to.  The  great  men  who 
composed  our  first  council, —  are 
they  dead,  have  they  deserted  the 
cause,  or  what  has  become  of  them? 
Very  few  are  dead,  and  still  fewer 
have  deserted  the  cause  :  they  are 
all,  except  the  few  who  still  remain 
in  Congress,  either  in  the  field,  or 
in  the  civil  offices  of  their  respec- 
tive States  ;  far  the  greater  part 
are  engaged  in  the  latter.  The 
only  remedy,  then,  is  to  take  them 
out  of  these  employments,  and  re- 
turn them  to  the  place  where  their 
presence  is  infinitely  more  impor- 
tant. Each  State,  in  order  to  pro- 
mote its  own  internal  government 
and  prosperity,  has  selected  its  best 
members  to  fill  the  ofiices  within 
itself,  and  conduct  its  own  affairs. 
Men  have  been  fonder  of  the  emol- 
uments and  conveniences  of  being 
employed  at  home  ;  and  local  at- 
tachment, folsely  operating,  has 
made  them  more  provident  for  the 
particular  interests  of  the  States  to 
wliich  they  belonged,  than  for  the 
common  interests  of  the  Confedera- 


cy. This  is  a  most  pernicious  mis 
take,  and  must  be  corrected.  How- 
ever important  it  is  to  give  form 
and  efficiency  to  your  interior  con 
stitutions  and  police,  it  is  infinitely 
more  important  to  have  a  wise  gen- 
eral council ;  otherwise,  a  failure 
of  the  measures  of  the  Union  will 
overturn  all  your  labors  for  the  ad- 
vancement of  your  particular  good, 
and  ruin  the  common  cause.  You 
should  not  beggar  the  councils  of 
the  United  States  to  enrich  the  ad- 
ministration of  the  several  mem- 
bers. Realize  to  yourself  the  con- 
sequences of  having  a  Congress  de- 
spised at  home  and  abroad.  How 
can  the  common  force  be  exerted, 
if  the  power  of  collecting  it  be  put 
in  weak,  foolish,  and  unsteady 
hands  ?  How  can  we  hope  for  suc- 
cess in  our  European  negotiations, 
if  the  nations  of  Europe  have  no 
confidence  in  the  wisdom  and  vigor 
of  the  great  continental  govern- 
ment? This  is  the  object  on  which 
their  eyes  are  fixed ; .  hence  it  is, 
America  will  derive  its  importance 
or  insignificance  in  their  estima- 
tion." Letter  by  Hamilton  to 
George  Clinton,  written  from  the 
head-quarters  of  the  army,  Febru- 
ary 13,  1778.  Writings  of  Wash- 
injrton.  V.  508. 


Ch.  V.l  THE   CONTEDERATION.  129 

States  objected  to  the  rule  for  apportioning  the  taxes 
and.  forces  to  be  raised  by  the  States  for  the  service 
of  the  Union ;  but  Congress  rejected  every  proj)osi- 
tion  to  alter  it,  as  it  was  believed  to  be  impossible 
that  any  other  rule  should  be  agreed  upon. 

But  there  was  an  objection  made  by  the  State  of 
New  Jersey,  which  should  be  particularly  noticed 
here,  because  it  foreshadowed  the  great  idea  which 
the  Constitution  of  the  United  States  aftei'wards  em- 
bodied. This  objection  was,  that  the  Articles  of 
Confederation  contained  no  provision  by  which  the 
foreign  trade  of  the  country  would  be  placed  under 
the  regulation  of  Congress.  The  sixth  of  the  Arti- 
cles of  Confederation  declared,  that  no  State  should 
levy  any  imposts  or  duties,  which  might  interfere 
with  any  stipulations  entered  into  by  the  United 
States  with  any  foreign  power  pursuant  to  the  trea- 
ties already  proposed  to  the  courts  of  France  and 
Spam ;  while  the  nmth  article  declared  that  no  treaty 
of  commerce  should  be  made  by  the  United  States, 
whereby  the  legislative  power  of  the  respective  States 
should  be  restramed  from  imposing  such  imposts  and 
duties  on  foreigners  as  their  own  people  were  sub- 
jected to,  or  from  prohibiting  the  exjDortation  or  im- 
portation of  any  species  of  goods  or  commodities 
whatsoever.  The  effect  of  these  provisions  was  sim- 
ply to  restrain  the  States  from  laying  imposts  which 
would  mterfere  with  the  then  proposed  treaties;  in 
all  other  respects,  the  foreign  trade  of  each  State  was 
left  to  be  regulated  by  State  legislation. 


130 


THE  FEDERAL  CONSTITUTION. 


[Book  I 


The  legislatui'e  of  New  Jersey,  iii  a  very  able  me- 
morial, laid  before  Congress  on  the  25  th  of  June, 
1778,  declared  that  the  sole  and  exclusive  power  of 
regulating  the  trade  of  the  United  States  with  foreign 
nations  ought  to  be  clearly  vested  in  the  Congress, 
and  that  the  revenue  arising  from  duties  and  customs 
ought  to  be  appropriated  to  the  building  and  support 
of  a  navy  for  the  protection  of  trade  and  the  defence 
of  the  coasts,  and  to  other  public  and  general  pur- 
poses, for  the  common  benefit  of  the  States.  They 
suggested  that  a  great  security  would  be  derived  to 
the  Union,  from  such  an  establishment  of  a  com- 
mon and  mutual  interest.-^  But  this  suggestion  was 
both  prematiu'e  and  tardy.  It  was  prematiu'e,  be- 
cause the  States  had  not  yet  learned  that  their  con- 
trol over  foreign  commerce  must  be  surrendered,  if 
they  would  avoid  the  evils  of  perpetual  conflict  with 
each  other;  and  it  came  too  late,  because  the  Arti- 
cles of  Confederation  were  practically  incapable  of 


1  Journals,  IV.  269,  270.  This 
wise  and  well-considered  document 
contained  many  other  very  impor- 
tant suggestions ;  among  which 
was  that  of  an  oath,  test,  or  decla- 
ration to  be  taken  by  the  delegates 
in  Congress,  previous  to  their  ad- 
mission to  their  seats.  "It  is  indeed 
to  be  presumed,"  said  the  memo- 
rial, "  that  the  respective  States 
will  be  careful  that  the  delegates 
they  send  to  assist  in  managing  the 
general  interests  of  the  Union,  take 
the  oaths  to  the  government  from 
which  they  deriv^;  tlieir  authority  : 
but  as  the  United  States,  collec- 


tively considered,  have  interests  as 
well  as  each  particular  State,  we 
are  of  opinion,  that  some  test  or 
obligation,  binding  upon  each  dele- 
gate while  he  continues  in  the 
trust,  to  consult  and  pursue  the 
former  as  well  as  the  latter,  and 
particularly  to  assent  to  no  vote  or 
proceeding  which  may  violate  the 
general  confederation,  is  necessary. 
The  laws  and  usages  of  all  civilized 
nations  evince  the  propriety  of  an 
oath  on  such  occasions,  and  the 
more  solemn  and  important  the  de- 
posit, the  more  strong  and  explicit 
ou2:ht  the  obligation  to  be." 


Cii.  v.]  THE   COKFEDEEATION.  131 

amenchnent,  at  the  period  when  the  suggestion  was 
made.^ 

The  great  obstacle,  however,  to  the  adoption  of  the 
Confederation,  which  delayed  the  assent  of  several  of 
the  smaller  States  for  so  long  a  period,  was  the  claim 
of  some  of  the  larger  States  to  the  vacant  lands  lying 
within  what  they  considered  their  rightful  bounda- 
ries. The  boundaries  of  the  great  States,  as  fixed  by 
their  charters  derived  from  the  crown  of  England, 
extended,  in  terms,  "  to  the  South  Sea,"  and  each  of 
these  States,  as  successor,  by  the  Revolution,  to  the 
crown,  with  regard  to  territorial  sovereignty,  claimed 
to  own  both  the  jurisdiction  and  the  property  of  all 
the  crown  lands  within  its  limits.  This  claim  was 
strenuously  resisted  by  Rhode  Island,  Delaware,  New 
Jersey,  and  Maryland.  They  insisted  that  Congress 
ought  to  have  the  right  to  fix  the  boundaries  of  the 
States  whose  charters  stretched  to  such  an  indefinite 
extent  into  the  Western  wilderness,  and  that  the  un- 
occupied lands  ought  to  be  the  property  of  the  whole 
Union ;  since,  if  the  independence  of  the  country 
should  be  finally  established,  those  lands  would  have 
been  conquered  fifom  the  crown  of  England  by  the 
common  blood  and  treasui'e  of  aU  the  States.  The  '' 
effect  of  a  tacit  recognition  of  the  claims  of  the  great 
States  upon  the  welfare  of  such  a  State  as  Maryland, 
through  the  absence  from  the  Articles  of  Confedera- 

*  Three  States  only  voted  in  fa-      voted  against  them,  and  one  was 
vor  of  adopting  any  of  the  sugges-      divided.     Journals,  IV.  272. 
tions  made   by   New  Jersey  :    six 


132  THE  FEDERAL  CONSTITUTION.  [Book  1 

tion  of  any  provision  on  the  subject,  was  strikingly 
exliibited,  by  its  legislature,  in  certain  instructions 
to  their  delegates  in  Congress,  which  were  laid  before 
that  body  on  the  21st  of  May,  1779.  They  pointed 
out  two  consequences  likely  to  result  from  a  confir- 
mation of  the  claim  which  Virginia  had  set  up  to 
an  extensive  and  fertile  country;  the  one  would  be, 
they  said,  dii'ectly  injurious  to  Maryland,  while  the 
other  would  be  inconsistent  Avith  the  letter  and  spirit 
of  the  proposed  Confederation.  They  supposed,  on 
the  one  hand,  that  a  sale  by  Vii'ginia  of  only  a  small 
proportion  of  these  lands  would  draw  into  her  treas- 
ury vast  sums  of  money,  enabluig  her  to  lessen  her 
taxes,  and  thereby  to  drain  the  less  wealthy  neigh- 
boring State  of  its  most  useful  inhabitants,  which 
would  cause  it  to  sink,  in  wealth  and  consequence, 
in  the  scale  of  the  confederated  States.  On  the  other 
hand,  they  suggested  that  Virginia  might,  and  prob- 
ably woidd,  be  obliged  to  divide  its  territory,  and  to 
erect  a  new  State,  under  the  auspices  and  direction 
of  the  elder,  from  whom  it  would  receive  its  form  of 
government,  to  whom  it  would  be  bound  by  some 
alliance,  and  by  whose  counsels  it  would  be  influ- 
enced. They  declared  that,  if  this  were  to  take  place, 
it  would  be  inconsistent  "svith  the  letter  and  spirit  of 
the  Confederation  already  proposed ;  that,  if  it  were 
to  result  in  the  establishment  of  a  sub-confederacy, 
an  inipei'liwi  in  imperio,  the  State  possessed  of  this 
extensive  dominion  must  then  cither  submit  to  all 
the  inconveniences  of  an  overgrown  and  u.n"svieldy 
government,  or  suffer  the  authority  of  Congress  to 


On.  v.]  THE   COKFEDERATION.  133 

interpose  at  a  future  time,  and  lop  off  a  part  of  its 
territory  to  be  erected  into  a  new  and  free  state,  and 
admitted  into  a  confederation  on  such  conditions  as 
should  be  settled  by  nine  States.  If,  they  asked,  it 
should  be  necessary  for  the  happiness  and  tranquilli- 
ty of  a  State  thus  overgrown,  that  Congress  should, 
at  some  future  time,  interfere  and  divide  its  territory, 
why  should  the  claim  to  that  territory  be  now  made 
and  insisted  upon  ?  Policy  and  justice,  they  urged, 
alike  required,  that  a  country, — unsettled  at  the  com- 
mencement of  the  war,  claimed  by  the  British  crown 
and  ceded  to  it  by  the  treaty  of  Paris,  —  if  wrested 
from  the  common  enemy  by  the  blood  and  treasure  of 
the  thirteen  States,  should  be  considered  as  a  com- 
mon property,  subject  to  be  parcelled  out  by  Congress 
into  free,  convenient,  and  independent  governments, 
in  such  'manner  and  at  such  times  as  their  wisdom 
might  thereafter  direct.  Coolly  and  dispassionately 
considermg  the  subject,  weighmg  probable  inconven- 
iences and  hardships  against  the  sacrifice  of  just  and 
essential  rights,  they  then  instructed  their  delegates 
to  withhold  the  assent  of  Maryland  to  the  Confed- 
eration, until  an  article  or  articles  could  be  obtained 
in  conformity  with  these  views.^ 

Agamst  this  proposition,  the  State  of  Virginia, 
which  had  already  ratified  the  Articles  of  Confedera- 
tion, so  remonstrated,  that  there  appeared  to  be  no 
prospect  of  reconciling  the  difficulty.  At  this  junc- 
ture the  State  of  New  York  came  fonvard,  and  by  an 

1  Secret  Journals,  I,  433. 


134  THE  FEDERAL  CONSTITUTION.  [Book  I, 

act  of  its  legislature,  passed  on  the  19th  of  February, 
1780,  authorized  its  delegates  in  Congress  to  limit 
the  western  boundaries  of  the  State,  and  ceded  a 
portion  of  its  public  lands  for  the  use  and  benefit  of 
such  of  the  United  States  as  should  become  members 
of  the  federal  alliance.  The  motives  upon  which 
this  concession  was  expressly  made  had  reference  to 
the  formation  of  the  Union,  by  removing,  as  far  as 
depended  upon  the  State  of  New  York,  the  impedi 
ment  which  had  so  long  prevented  it.-^ 

After  they  had  received  official  notice  of  this  act, 
by  a  report  made  on  the  6th  of  September,  1780, 
Congress  pressed  upon  the  other  States,  similarly  sit- 
uated, the  policy  of  a  liberal  surrender  of  a  portion 
of  their  territorial  claims,  as  they  cordd  not  be  pre- 
served entire  without  endangering  the  stability  of  the 
general  confederacy ;  —  remmding  them  how  indis 
pensably  necessary  it  was  to  establish  the  Federal 
Union  on  a  fixed  and  permanent  basis,  and  on  prin- 
ciples acceptable  to  all  its  respective  members, — how 
essential  it  was  to  public  credit  and  confidence,  to  the 
support  of  the  army,  to  the  vigor  of  the  national 
councils,  to  tranquillity  at  home,  to  reputation  abroad, 
and  to  the  very  existence  of  the  people  of  America 
as  a  free,  sovereign,  and  independent  people.  At  the 
same  time,  they  earnestly  requested  the  legislature  of 
the  State  of  Maryland  to  accede  to  the  Confederation.^ 

That  State  was  not  without  examples  of  patriotic 
confidence    among-   her   smaller   sister   States.      As 


1  SecrC-  Journals,  I.  440.  '^  Ibid.  442. 


Cu.  V.J  THE   CONFEDERATION.  135 

early  as  the  20th  of  November,  1778,  New  Jersey 
had  led  the  way  to  a  generous  trust  on  the  part  of 
the  States  which  still  remained  out  of  the  Union. 
She  declared  that  the  Articles  of  Confederation  were 
m  divers  respects  unequal  and  disadvantageous  to 
her,  and  that  her  objections  were  of  essential  moment 
to  the  welfare  and  happiness  of  her  people ;  yet,  con- 
vinced of  the  present  necessity  of  acceding  to  the 
confederacy  proposed,  feeling  that  every  separate  and 
detached  interest  ought  to  be  postponed  to  the  gen- 
eral good  of  the  Union,  and  firaily  believing  that 
the  candor  and  justice  of  the  several  States  would, 
in  due  time,  remove  the  inequality  of  which  she  com- 
plamed,  she  authorized  her  delegates  to  accede  to  the 
Confederation.-^ 

Delaware  folloAved  with  not  unequal  steps.  On 
the  1st  of  February,  1779,  she  declared  that,  al- 
though she  was  justly  entitled  to  a  right,  in  com- 
mon with  the  other  members  of  the  Union,  to  that 
extensive  tract  of  country  lying  to  the  westward  of 
the  frontiers  of  the  United  States,  gained  by  the 
blood  and  treasure  of  all,  and  therefore  proper  to 
become  a  common  estate,  to  be  granted  out  on  terms 
beneficial  to  all ;  yet,  for  the  same  reasons,  and  from 
the  same  motives  with  those  announced  by  New 
Jersey,  and  with  a  like  faith  in  the  sense  of  justice 
of  her  great  confederates,  she  ratified  the  Articles 
of  Confederation.^ 

These  examples  were  not  without  influence  upon 

1  Secret  Journals,  I.  421.  2  ibid.  424. 


13G  THE  FEDERAL  CONSTITUTION.  [Book  I. 

the  councils  of  patriotic  Maryland.  On  the  30th  of 
January,  1781,  her  legislature  passed  an  act,  the  pre- 
amble of  which  commences  with  these  memorable 
words:  "^Vliereas  it  hath  been  said,  that  the  common 
enemy  is  encouraged,  by  this  State  not  acceding  to 
the  Confederation,  to  hope  that  the  union  of  the 
sister  States  may  be  dissolved;  and  they  therefore 
prosecute  the  war  in  expectation  of  an  event  so  dis- 
graceful to  America ;  and  our  friends  and  illustrious 
ally  are  impressed  Avith  an  idea,  that  the  common 
cause  would  be  promoted  by  our  formally  acceding 
to  the  Confederation:  This  General  Assembly,  con- 
scious that  this  State  hath,  from  the  commencement 
of  the  war,  strenuously  exerted  herself  in  the  com 
mon  cause,  and  fully  satisfied  that,  if  no  formal  con 
federation  were  to  take  place,  it  is  the  fixed  determi- 
nation of  this  State  to  continue  her  exertions  to  the 
utmost,  agreeable  to  the  faith  pledged  in  the  Union ; 
—  from  an  earnest  desire  to  conciliate  the  afiection 
of  the  sister  States,  to  convince  all  the  world  of  our 
unalterable  resolution  to  support  the  independence 
of  the  United  States,  and  the  alliance  with  his  most 
Christian  Majesty,  and  to  destroy  for  ever  any  ap- 
prehension of  our  friends,  or  hope  m  our  enemies,  of 
this  State  being  again  united  to  Great  Britaui ;  — 
Be  it  enacted,"  &c.  The  act  then  proceeded  to  adopt 
and  ratify  the  Articles  of  Confederation,  relying  on 
the  justice  of  the  other  States  to  secure  the  interests 
of  the  whole  in  the  unoccupied  Western  territory.^ 

1  Secret  Journals,  I.  4 15. 


Ch.  v.]  the  conpebeeation.  137 

As  soon  as  this  act  of  Maryland  was  laid  before 
Congress,  the  jo}^ul  news  was  announced  to  the 
country,  that  the  Union  of  the  States  was  consum- 
mated under  the  written  instrument,  which  had  been 
so  long  projected.  The  same  month  which  saw  the 
completion  of  this  Union  witnessed  a  cession  by 
Virginia  to  the  United  States  of  all  her  claims  to 
lands  northwest  of  the  river  Ohio;  but  the  cession 
was  not  finally  completed  and  accepted  until  the 
month  of  March,  178 J:.  This  vast  territory,  now^ 
the  seat  of  prosperous  and  powerful  States,  came 
into  the  possession  of  the  United  States,  under  a 
provision  made  by  Congress,  that  such  lands  should 
be  disposed  of  for  the  common  benefit  of  the  United 
States,  and  should  be  settled  and  formed  into  distinct 
republican  States,  to  become  members  of  the  Federal 
Union,  with  the  same  rights  of  sovereignty,  freedom, 
and  independence  as  the  other  States. 

The  historian  who  may,  in  any  generation,  re- 
cord these  noble  acts  of  patriotism  and  concession, 
should  pause  and  contemplate  the  magnitude  of  the 
event  with  which  they  were  connected.  He  should 
pause,  to  render  honor  to  the  illustrious  deeds  of 
that  great  community,  which  first  generoiflsly  with- 
drew the  impediment  of  its  territorial  clauns;  and 
t(?  the  no  less  gallant  confidence  of  those  smaller 
States,  which  trusted  to  the  future  for  the  final 
and  complete  removal  of  the  inequality  of  which 
they  complamed.  He  should  render  honor  to  the 
State  of  New  York,  for  the  surrender  of  a  territory 
to  which  she  believed  her  legal  title  to  be  complete  ; 

VOL.   I.  18 


138  THE  FEDERAL  CONSTITUTION.  [Book  I. 

a  title  wliich.  nothing  but  the  paramount  equity  of  the 
claims  of  the  whole  Confederacy  ought  to  have  over- 
come. That  equity  she  aclmowledged.  She  threw 
aside  her  charters  and  her  title-deeds ;  she  ceased  to 
use  the  language  of  royal  grants,  and  discarded  the 
prmciple  of  succession.  She  came  forth  from  among 
her  parchments  into  the  forum  of  conscience,  in  pres. 
ence  of  the  whole  American  people ;  and  —  recog- 
nizing the  justice  of  their  claun  to  territories  gained 
by  their  common  efforts  —  to  secure  the  inestimable 
blessings  of  union,  for  their  good  and  for  her  own, 
she  submitted  to  the  national  will  the  determuiation 
of  her  western  boundaries,  and  devoted  to  the  national 
benefit  her  vast  claims  to  unoccupied  territories. 

Equal  honor  should  be  rendered  to  New  Jersey, 
to  Delaware,  and  to  Maryland.  The  two  former, 
without  waitmg  for  the  action  of  a  single  State 
witlim  whose  reputed  limits  these  public  domams 
were  situate,  trusted  wholly  to  a  future  sense  of 
justice,  and  ratified  the  Union  in  the  confidence 
that  justice  would  be  done.  The  latter  waited ;  but 
only  until  she  saw  that  the  common  enemy  was 
encouraged,  and  that  friends  were  disheartened,  by 
her  veseNe.  Seeing  this,  she  hesitated  no  longer, 
but  completed  the  union  of  the  States  before  Vir- 
ginia had  made  the  cession,  which  afterwards  so 
nobly  justified  the  confidence  that  had  been  placed 
in  her.^  ^ 

1  After  the   Confederation    had  of  Mr.  Justice  Story,  "  this  great 

thus   been   formed,  by  subsequent  source  of  national  dissension  was 

cessions   of    their    claims   by   the  at  last  dried  up." 
other  States,  to  use  the  lannruage 


Cu.  v.]  THE   CONFEDERATION.  139 

The  student  of  American  constitutional  history, 
therefore,  cannot  fail  to  see,  that  the  adoption  of  the 
first  written  constitution  was  accomplished  thi'ough 
great  and  magnanimous  sacrifices.  The  very  foun- 
dations of  the  structure  of  government  since  raised 
rest  upon  splendid  concessions  for  the  common  weal, 
made,  it  is  true,  under  the  stem  pressure  of  war,  but 
made  from  the  noblest  motives  of  patriotism.  These 
concessions  evince  the  progress  which  the  people  of 
the  United  States  were  then  making  towards  both 
a  national  character  and  a  national  feeling.  They 
show  that,  while  there  were  causes  which  tended  to 
keep  the  States  apart,  —  the  formation  of  State  con- 
stitutions, the  confiictuig  interests  growmg  out  of  the 
mequalities  of  these  difierent  communities,  and  the 
previous  want  of  a  national  legislative  power,  —  there 
were  stiU  other  causes  at  work,  which  tended  to  draw 
together  the  apparently  discordant  elements,  and  to 
create  a  union  in  which  should  be  bound  together, 
as  one  nation,  the  populations  which  had  hitherto 
known  only  institutions  of  a  local  character.  The 
time  was  indeed  not  come,  when  these  latter  tenden- 
cies could  entirely  overcome  the  former.  It  was  not 
until  the  trials  of  peace  had  tested  the  strength  and 
efiiciency  of  a  system  formed  under  the  trials  of  wary 
—  when  another  and  a  severer  conflict  between  na- 
tional and  local  interests  was  to  shake  the  republic 
to  its  centre,  —  that  a  national  government  coidd 
be  formed,  adequate  to  all  the  exigencies  of  both. 
Still,  the  year  1781  saw  the  establishment  of  the 
Confederation,  caused  by  the  necessities  o:^  military 


140  THE  FEDERAL   CONSTITUTION.  [Book  I 

defence  against  an  invading  enemy.  But  it  was 
accomplished  only  through  the  sacrifice  of  great 
claims;  and  the  fact  that  it  was  accomplished,  and 
that  it  led  the  way  to  our  present  Constitution, 
proves  at  once  the  wisdom  and  the  patriotism  of 
those  who  labored  for  it. 

The  great  oifice  ^of  the  Confederation,  in  our  politi- 
cal history,  will  be  a  proper  topic  for  consideration, 
after  the  analysis  of  its  provisions.  But  we  should 
not  omit  to  observe  here,  that,  when  the  union  of  the 
States  was  thus  secured,  the  motives*  on  which  it  Avas 
formed,  and  the  concessions  by  which  it  was  accom- 
panied and  followed,  created  a  vast  obstacle  to  any 
future  dissolution.  The  immediate  object  of  each 
State  was  to  obtain  its  ow^n  independence  of  the 
crown  of  Great  Britain,  through  the  united,  and 
therefore  more  powerful,  action  of  all  the  States. 
But,  in  order  to  effect  such  a  union,  that  immense 
-territory,  over  which,  in  the  language  of  Maryland, 
"  free,  convenient,  and  independent  governments " 
were  afterwards  to  be  formed,  was  to  be  ceded  in 
advance,  or  to  be  impliedly  promised  to  be  ceded,  to 
the  use  and  benefit  of  the  whole  confederacy.  A 
confederacy  of  states,  which  had  become  possessed  of 
such  a  common  property,  was  thus  bound  together 
by  an  interest,  the  magnitude  and  force  of  which 
cannot  now  be  easily  estimated.  The  Union  might 
incur  fresh  dangers  of  dissolution,  after  the  war  had 
ceased ;  its  frame  of  government  and  its  legisla- 
tive power  might  prove  wholly  inadequate  to  the  na- 
tional Wiants  in  time  of  peace ;  the  public  faith  might 


Ch.  v.]  the  contedeeation.  141 

be  jDrostrated,  and  the  national  arm  enfeebled ;  — 
still,  while  the  Confederacy  stood  as  the  great  trustee 
of  property  large  enough  for  the  accommodation  of 
an  empire,  a  security  existed  against  its  total  destiTic- 
tion.  No  State  could  withdraw  from  the  Confedera- 
tion, without  forfeitmg  its  interest  in  this  grand  pub- 
lic domain ;  and  no  human  wisdom  could  devise  a 
satisfactory  distribution  of  property  ceded  as  a  com- 
mon fund  for  the  common  benefit  of  sovereign  States, 
^vithout  any  fixed  ratio  of  interest  in  the  respective 
beneficiaries,  and  without  any  clear  power  in  the  gov- 
ernment of  the  Confederation  to  deal  with  the  trust 
itself.1 


1  One  of  the  great  inducements  express  authority  to  do  this,  al- 
to the  adoption  of  the  Constitution  though  they  proceeded  both  to  dis- 
of  the  United  States  was  to  give  pose  of  the  lands  and  to  erect  new 
the  general  government  adequate  States,  by  the  Ordinance  of  1787. 
constitutional  power  to  dispose  of  See  The  Federalist,  No.  38,  42, 
the  Western  territory  and  to  form  43.  Story's  Commentaries  on  the 
new  States  out  of  it.  Congress,  Constitution,  III.  184  -  190,  1st 
under  the   Confederation,  had   no  edition. 


CHAPTEH  YI. 

Nature  and  Powers  of  the  Confederation. 

The  nature  of  the  government  established  by  the 
Ai'ticles  of  Confederation  can  be  understood  only  by 
an  analysis  of  their  provisions.  For  this  purpose, 
the  ulstrument  must  here  be  examined  with  reference 
to  three  principal  topics :  first,  the  luiion  which  it 
established  between  the  different  members  of  the 
Confederacy ;  second,  the  form  of  the  government 
which  it  created ;  and  thii'd,  the  powers  which  it  con- 
ferred, or  omitted  to  confer,  upon  that  government. 

I.  The  parties  to  this  instrument  were  free,  sover- 
eign, and  independent  pohtical  commmiities,  —  each 
possessing  within  itself  all  the  powers  of  legislation 
and  government,  over  its  own  citizens,  which  any  po- 
litical society  can  possess.  But,  by  this  instrmnent, 
these  several  States  became  united  together  for  cer- 
tain purposes.  The  instrument  was  styled,  "Articles 
of  Confederation  and  Perpetual  Union  between  the 
States,"  and  the  political  body  thus  formed  was  en- 
titled "  The  United  States  of  America."  The  Arti- 
cles declared  —  as  would,  indeed,  be  implied,  in  such 
circumstances,   without    any   express   declaration  — 


Ch.  VI.]  THE  CONFEDERATION.  143 

that  each  State  retained  its  sovereignty,  freedom, 
and  independence,  and  every  power,  jmisdiction,  and 
right  not  expressly  delegated  by  the  instrument  itself 
to  the  United  States  in  Congress  assembled.  The 
nature  and  objects  of  this  union  were  described  as  a 
firm  league  of  friendship  between  the  States,  for  their 
common  defence,  the  security  of  their  liberties,  and 
their  mutual  and  general  welfare;  and  the  parties 
bound  themselves  to  assist  each  other  against  all 
force  offered  to  or  attacks  made  upon  them,  or  any 
of  them,  on  account  of  religion,  sovereignty,  trade,  or 
under  any  pretence  whatever. 

It  was  also  provided,  that  the  free  inhabitants  of 
each  State  should  be  entitled  to  all  the  privileges  of 
free  citizens  in  the  several  States ;  *  that  there  should 
be  an  open  intercourse  and  commerce  between  the 
different  States  ;  that  fugitives  fr'om  justice  from  one 
State  to  another  should  be  delivered  up;  and  that 
full  faith  and  credit  shoidd  be  given  in  each  State  to 
the  records,  acts,  and  judicial  proceedings  of  every 
other  State.^ 

II.  The  government  established  by  the  Articles 
of  Confederation  consisted  of  a  single  representative 


^  That  is  to  say,  that  a  citizen  dered  in  any  other  State,  properly 

ol  any  State  might  go  and  reside  authenticated,  it  should  be  admit 

in  any  other  State,  and  be  there  en-  ted  that  such  a  law  had  been  passed 

titled  to  all  the  privileges  of  a  citi-  or  such  a  judgment  rendered  in  the 

zen  of  that  State.  State  whose  act  it  purported  to  be, 

2  The  .meaning  of  this  is,  that,  and  that  all  the  legal  consequences 

on  the  production  in  any  State  of  a  should  follow, 
law  passed  or  of  a  judgment  ren- 


144  THE  FEDERAL  CONSTITUTION.  [Book  I, 

body,  called  a  General  Congress.  In  this  body  were 
vested  all  the  powers,  executive,  legislative,  and  judi- 
cial, granted  to  the  United  States.  The  members  of 
it  were  to  be  chosen  by  the  States,  in  such  manner 
as  the  legislature  of  each  State  might  determme ;  no 
State  to  be  represented  by  more  than  seven  delegates, 
or  by  less  than  two.  No  delegate  was  eligible  for 
more  than  three  years  in  a  period  of  six;  and  no 
delegate  could  hold  any  office  of  emolument  under 
the  United  States.  Each  State  was  to  mamtam  its 
own  delegates,  and  in  the  determination  of  questions, 
the  voting  was  to  be  by  States,  each  State  having  one 
vote. 

III.  It  snould  be  remembered,  that  the  objects 
and  purposes  of  the  Confederation  related  chiefly  to 
the  defence  of  the  States  against  external  attacks; 
and  it  wa:s,  therefore,  as  it  purported  to  be,  a  league 
for  mutual  defence  and  protection,  through  the  com- 
bined powers  of  the  whole,  operating  m  certain  forms 
and  under  certain  restrictions.  For  the  manner  in 
which  this  new  authority  was  to  be  exercised,  we  are 
to  look  at  the  powers  conferred  upon  "the  United 
States  m  Congress  assembled."  These  powers  related 
to  external  and  to  internal  affairs. 

With  regard  to  the  external  relations  of  the  coun- 
try, Congress  was  invested  with  the  sole  and  exclu- 
sive right  of  determining  on  peace  and  war,  unless  in 
case  of  an  invasion  of  a  State  by  enemies,  or  an  im- 
minent danger  of  invasion  by  Indians ;  of  sending 
and  receiving  ambassadors ;  of  entering  into  treaties 


Ch.  VI.  1  THE   CONFEDERATION.  145 

and  alliances,  under  the  limitation  that  no  treaty  of 
commerce  could  be  made,  which  would  have  the 
effect  to  restrain  the  legislature  of  any  State  fi-om 
imposing  such  imposts  and  duties  on  foreigners  as 
their  own  people  were  subjected  to,  or  which  would 
operate  to  prohibit  the  exportation  or  importation 
of  any  commodity  whatever.  Congress  was  also  in- 
vested mth  power  to  deal  with  all  captures  and 
prizes  made  by  the  land  or  naval  forces  of  the  United 
States;  to  grant  letters  of  marque  and  reprisal  in 
times  of  peace ;  and  to  establish  courts  for  the  trial 
of  piracies  and  felonies  committed  on  the  high  seas, 
and  for  determining  appeals  in  cases  of  capture. 

With  regard  to  internal  affairs,  Congress  was  in- 
vested "svith  power  to  decide,  m  the  last  resort,  on 
appeal,  all  disputes  between  two  or  more  States,  con- 
cerning boundary,  jurisdiction,  or  any  other  cause ; 
and  also  all  controversies  concerning  land-titles, 
where  the  parties  claimed  under  different  grants  of 
two  or  more  States  before  the  settlement  of  their 
jurisdiction ;  but  no  State  was  to  be  deprived  of 
territory  for  the  benefit  of  the  United  States.  Con- 
gress was  also  invested  with  the  sole  and  exclusive 
right  and  power  of  regulatmg  the  alloy  and  value  of 
com  struck  by  their  authority,  or  by  that  of  any  of 
the  United  States ;  of  fixing  the  standard  of  weights 
and  measures  throughout  the  United  States ;  of  reg- 
ulating the  trade  and  managing  all  affair's  with  the 
Indians,  who  were  not  members  of  any  State,  pro- 
vided that  the  legislative  authority  of  any  State,  mth- 
in  its  own  limits,  should  not  be  infrmged  or  \iolated ; 

VOL.    I.  19 


146  THE  FEDERAL  CONSTITUTION.  [Book  I. 

of  establishing  and  regulating  post-offices  fi:om  one 
State  to  another,  and  exacting  postage  to  defray  the 
expenses ;  of  appointing  all  officers  of  the  land  forces 
in  the  service  of  the  United  States,  and  of  making 
rules  for  the  government  and  regulation  of  the  land 
and  naval  forces,  and  directing  their  operations. 

Congress  was  also  invested  Avith  power  to  appoint 
a  "committee  of  the  States,"  to  sit  in  the  recess  of 
Congress,  to  consist  of  one  delegate  from  each  State, 
and  other  committees  and  civil  officers,  to  manage 
the  general  affairs  under  their  direction ;  to  appoint 
one  of  their  number  to  preside,  but  authorizmg  no 
person  to  serve  in  the  office  of  president  more  than 
one  year  in  a  term  of  three  years ;  to  ascertain  and 
appropriate  the  necessary  sums  for  the  public  service ; 
to  borrow  money  and  emit  bills  on  the  credit  of  the 
United  States;  to  build  and  equip  a  navy;  and  to 
agree  upon  the  number  of  land  forces  and  make 
requisitions  upon  each  State  for  its  quota,  in  pro- 
portion to  the  numbers  of  white  inhabitants  in  such 
State.  The  legislature  of  each  State  was  to  appoint 
the  regimental  officers,  enlist  the  men,  and  clothe, 
arm,  and  equip  them,  at  the  expense  of  the  United 
States. 

Such  were  the  powers  conferred  upon  Congress  by 
the  Articles  of  Confederation.  But  the  restrictions 
imposed,  in  the  same  instrument,  greatly  qualified 
and  weakened,  and  in  fact  almost  rendered  nugatory, 
the  greater  part  of  them.  It  was  expressly  provided, 
that  Congress  should  never  engage  in  a  war;  nor 
grant  letters  of  marque  or  reprisal  in  time  of  peace ; 


Ch.  VI.]  THE   CONIFEDERATION.  147 

nor  enter  into  any  treaties  or  alliances ;  nor  coin 
money  or  regulate  its  value ;  nor  ascertain  the  sums 
of  money  necessary  for  the  public  purposes;  nor 
emit  bills;  nor  borrow  money  on  the  credit  of  the 
United  States ;  nor  appropriate  money ;  nor  agree 
upon  the  number  of  vessels  for  the  navy,  or  the  num- 
ber of  land  or  sea  forces  to  be  raised  ;  nor  appomt  a 
commander-in-chief  of  the  army  or  navy ;  —  unless 
nine  States  should  assent  to  the  same.  The  Com- 
mittee of  the  States  authorized  to  sit  during  the 
recess  of  Congress  could  not  do  any  of  these  things, 
for  the  assent  of  nine  States  could  not  be  delegated. 

The  revenues  of  the  coimtry  were  left  by  the  Arti- 
cles of  Confederation  wholly  in  the  control  of  the  sep- 
arate States.  It  was  provided,  that  all  charges  of  war, 
and  all  other  expenses  for  the  common  defence  or 
general  welfare,  should  be  defrayed  out  of  a  common 
treasury ;  but  this  treasury  was  to  be  supplied,  not 
by  taxes,  duties,  or  imposts,  le\ied  by  or  under  the 
authority  of  Congress,  but  by  taxes  to  be  laid  and 
levied  by  the  legislatures  of  the  several  States,  within 
such  time  as  might  be  fixed  by  Congress.  The 
amount  to  be  furnished  by  each  State  was  in  propor- 
tion to  the  value  of  the  land  within  its  limits  granted 
or  surveyed,  and  the  buildings  and  improvements 
thereon,  to  be  estimated  according  to  the  mode  pre- 
scribed by  Congress.  The  sole  means,^  therefore, 
which  the  Confederation  gave  to  Congress  of  sup- 
plying the  treasury  of  the  United  States,  was  to  vote 
what  sum  was  wanted,  and  to  call  upon  the  legisla- 
ture of  each  State  to  pay  in  its  proportion  within  a 


148  THE  FEDEEAL  CONSTITUTION.  [Book  i. 

given  time.  The  commerce  of  the  country  was  left 
entirely  withm  the  control  of  the  State  legislatiu*es ; 
rendermg  it  the  commerce  of  thirteen  different  States, 
each  of  which  could  levy  what  duties  it  saw  fit  upon 
all  exports  and  imports,  provided  they  did  not  inter- 
fere with  any  treaties  then  proposed,  or  touch  the 
property  of  the  United  States,  or  that  of  any  other 
State.  The  United  States  had  no  power  of  taxation, 
direct  or  indirect. 

The  Articles  of  Confederation  were  also  entirely 
without  any  provision  for  enforcing  the  measures 
which  they  authorized  Congress  to  adopt  for  the  gen- 
eral welfare  of  the  Union.  It  was  declared  in  the 
instrument,  that  every  State  should  abide  by  the  de- 
terminations of  Congress  on  all  the  questions  over 
which  the  instrument  gave  that  body  control;  that 
the  Articles  should  be  inviolably  observed  by  every 
State ;  that  the  Union  should  be  perpetual ;  and  that 
no  alterations  should  be  made  in  any  of  the  Articles, 
unless  agreed  to  by  Congress,  and  confirmed  by  the 
legislature  of  every  State.  But  these  declarations, 
however  strong  and  emphatic  in  their  terms,  only 
made  the  Confederation  in  fact,  as  in  name,  a  league 
or  compact  between  sovereign  States ;  for  it  gave  the 
government  of  the  Union  no  power  to  enforce  its 
OA\Ti  measures  or  laws  by  process  upon  the  persons 
of  individuals,  and  consequently  any  party  to  the 
instrument  could  infringe  any  or  all  of  its  provisions, 
mthout  any  other  consequence  than  a  resort  to  arms 
by  the  general  Confederacy,  which  would  have  been 
ci^il  war. 


Cn.  VI.]  THE   CONTEDEEATION.  149 

These,  with  some  restrictions  upon  the  power  of 
the  States  in  regard  to  the  making  of  treaties,  en- 
gaging in  war,  sending  ambassadors,  and  some  other 
topics,  were  the  main  provisions  of  the  Articles  of 
Confederation ;  and  imder  the  government  thus  con- 
stituted, the  United  States,  on  the  second  day  of 
March,  1781,  entered  upon  a  new  era  of  ci\il  polity, 
and  commenced  a  new  existence,  under  somewhat 
happier  auspices  than  they  had  knoTvn  before. 

It  will  be  seen,  in  the  further  development  of  the 
period  which  followed  the  establishment  of  this  Con- 
federation, do\vn  to  the  calling  of  the  Convention 
which  framed  the  Constitution,  that  what  I  have 
called  the  great  office  of  the  Confederation,  m  our 
political  system,  was  indeed  a  function  of  vast  impor- 
tance to  the  happiness  of  the  American  people,  but, 
at  the  same  time,  was  one  that  was  necessarily  soon 
fulfilled,  to  be  followed  by  a  more  perfect  organiza- 
tion for  the  accomplishment  of  the  objects  and  the 
satisfaction  of  the  wants  which  it  brought  ui  its 
train.  This  office  of  the  Confederation  was,  to  de- 
monstrate to  the  people  of  the  American  States  the 
practicability  and  necessity  of  a  more  perfect  union. 
The  Confederation  showed  to  the  people  of  these 
separate  communities,  that  there  were  certain  great 
purposes  of  civil  government,  which  they  could  not 
discharge  by  their  separate  means ;  that  independence 
of  the  crown  of  Great  Britain  could  not  be  achieved 
by  any  one  of  them,  unassisted  by  all  the  rest;  that  no 
one  of  them,  however  respectable  m  population  or  re- 
sources, could  be  received  and  dealt  with,  by  the  gov 


150  THE  FEDERAL  CONSTITUTION.  [Book  I 

ernments  of  the  world,  as  a  nation  among  nations ; 
—  but  that,  by  union  among  themselves,  by  some  po- 
litical tie,  which  should  combine  all  their  resources  in 
the  hands  of  one  directing  power,  and  make  them,  in 
some  practical  sense,  one  people,  it  was  possible  for 
them  to  achieve  thek  independence,  and  take  a  place 
among  the  nations.  The  Confederation  made  it  man- 
ifest, that  these  consequences  could  be  secured.  It 
did  not,  indeed,  answer  all  the  purposes,  or  accom- 
plish all  the  objects,  which  had  been  designed  or 
hoped  from  it :  it  was  defective  as  a  means ;  but  it 
taught  the  existence  of  an  end,  and  demonstrated  the 
possibility  of  reaching  that  end,  by  showing  that  in 
some  form,  and  for  some  purposes,  a  union  of  the 
States  was  both  possible  and  necessary.  It  thus  made 
the  permanent  idea  of  miion  familiar  to  the  people  of 
the  different  States.  It  did  more  than  this.  It  created 
a  larger  field  for  statesmanship,  by  creating  larger  in- 
terests, to  be  managed  by  that  higher  order  of  men, 
who  could  rise  above  local  concerns  and  sectional 
objects,  and  embrace  within  the  scope  of  their  vision 
the  happiness  and  welfare  of  a  continent.  It  intro- 
duced to  men's  minds  the  great  ideas  of  national 
power  and  national  sovereignty,  as  the  agencies  that 
were  to  work  out  the  difficult  results,  which  no  local 
power  could  accomplish;  and,  although  these  ideas 
were  at  first  vague  and  indefinite,  and  made  but  a 
slow  and  difficult  progress  against  influences  and 
prejudices  of  a  narrower  kind,  they  were  planted  in 
the  thoughts  of  men,  to  ripen  into  maturity  and 
strength  in  the  progress  of  future  years.     When  the 


Oh.  VI.]  THE   COKFEDEKATION.  151 

eagle  grasped  in  his  talons  the  united  shafts  of  pow- 
er, and  unfuiied  the  scroll  which  taught  that  one 
people  could  be  formed  out  of  many  communities, 
the'  destiny  of  America  was  ascertamed.-^ 

1  The  armorial  bearings  of  the      20th   of  June,    1782.      Journals, 
United  States  were  adopted  on  the      VII.  395. 


BOOK   II. 


THE  CONSTITUTIONAL  HISTORY  OF  THE  UNITED 
STATES,  FROM  THE  ADOPTION  OF  THE  ARTI 
CLES  OF  CONFEDERATION,  IN  1781,  TO  THE  PEACE 
OF    1783.  ' 


SO 


CHAPTER   I. 

1781-1783. 

Requisitions.  —  Claims  of  the  Army. — Newburgh  Audresses. — 
Peace  proclaimed.  —  The  Army   disbanded. 

The  interval  of  time  which  extends  ft'om  the  adop- 
tion of  the  Articles  of  Confederation  to  the  initiatory 
steps  for  the  formation  of  the  Constitution,  must,  for 
our  purpose,  be  divided  into  two  periods ;  that  which 
preceded  and  that  which  followed  the  peace  of  1783 ; 
in  both  of  which  the  defects  of  the  Confederation  were 
i-apidly  developed,  and  in  both  of  which  efforts  were 
made  to  supply  those  defects,  by  an  enlargement  of 
the  powers  of  Congress.  Our  attention,  however,  ^vill 
be  confined,  in  the  present  Book,  to  the  first  of  these 
periods. 

Congress  assembled,  under  the  Confederation,  on 
the  2d  of  March,  1781,  and  the  Treaty  of  Peace, 
which  put  an  end  to  the  war  and  admitted  the  inde- 
pendence of  the  United  States,  was  definitively  signed 
on  the  3d  of  September,  1783,  and  was  ratified  and 
proclaimed  by  Congress  on  the  14th  of  January,  1784. 

Notwithstanding  the  solemn  engagements  into 
which  the  States  had  entered  with  each  other,  under 


156  THE  TEDEEAL  CONSTITUTION.  [Book  H, 

the  Articles  of  Confederation,  the  prospect  of  bring- 
ing the  war  to  a  close,  through  a  compliance  "with 
those  obligations,  was  exceedingly  faint,  at  the  com- 
mencement of  the  campaign  of  1782.  The  United 
States  had  made  a  treaty  of  alhance  with  the  king 
of  France,  in  1778;^  and  in  pursuance  of  that  treaty, 
six  thousand  French  troops  arrived  at  Newport  in 
July,  1780,  and  in  the  sprmg  of  1781  joined  the 
American  amiy  near  New  York.  The  presence  in 
the  country  of  a  foreign  force,  sent  hither  by  the 
ancient  rival  of  England,  to  assist  the  people  of  the 
United  States  in  their  contest  for  mdependence, 
encouraged  an  undue  reliance  upon  external  aid. 
Many  of  the  States  became  culpably  remiss  m  com- 
plying with  the  requisitions  of  Congress ;  and,  al- 
though they  had  so  recently  authorized  Congress  to 
make  requisitions,  both  for  men  and  money,  and 
had  provided  the  form  in  which  they  were  to  be 
made,  the  adoption  of  the  Articles  of  Confederation 
had  very  little  tendency  to  render  the  States  prompt 
to  discharge  the  obligations  which  they  imposed.  In 
October  and  November,  1781,  Congress  called  upon 
the  States  to  raise  theu*  several  quotas  of  eight  mil- 
lions of  dollars,  for  the  use  of  the  United  States,  and 
recommended  to  them  to  lay  taxes  for  raising  these 
quotas  separate  fi:om  those  laid  for  their  own  par- 
ticular use,  and  to  pass  acts  directing  the  collectors 
of  the  taxes,  intended  for  the  use  of  the  United  States, 
to  pay  the  same  dii'ectly  into  the  treasury  of  the 

1  The  treaty  was  concluded  at      ratified  by  Congress  on  the  5th  of 
Paris,  February  6,  1778,  and  was      May.     Journals,  IV   256,  257* 


Cu.  I.]  THE  CONFEDERATION.  157 

Union.^  In  December  of  the  same  year,  Congress 
also  called  upon  the  States,  with  great  urgency,  to 
complete  their  quotas  of  troops  for  the  next  cam- 
paign.^ 

The  aid  of  Washington  Avas  invoked,  to  influence 
the  action  of  the  States  upon  these  requisitions.  On 
the  22d  of  January,  1782,  he  addressed  a  circular 
letter  to  the  governors  of  the  States,  to  be  laid  be- 
fore their  respective  legislatures,  on  the  subject  of 
finance ;  reminding  them  how  the  whole  amiy  had 
been  thrown  mto  a  ferment  twelve  months  before, 
for  the  want  of  pay  and  a  regular  supply  of  clothing 
and  provisions ;  warning  them  that  the  recent  suc- 
cesses in  Virginia,  by  the  capture  of  Lord  ComwaUis's 
army,  might  have  a  fatal  tendency  to  cool  the  ardor 
of  the  country  in  the  prosecution  of  the  war ;  assur- 
ing them  that  a  vigorous  prosecution  of  that  war 
could  alone  secure  the  independence  of  the  United 
States ;  and  urgmg  them  to  adopt  such  measures  as 
would  insure  the  prompt  payment  of  the  sums  which 
Congress  had  called  for.^  A  few  days  afterwards,  he 
addressed  a  similar  letter  to  the  States,  on  the  subject 
of  completmg  their  quotas  of  troops,  in  which  he 
told  them  that  the  continuance  or  termination  of  the 
war  now  rested  on  their  vigor  and  decision ;  and  that, 
even  if  the  enemy  were,  m  consequence  of  their  late 
reverses,  disposed  to  treat,  nothmg  but  a  decidedly 
superior  force  could  enable  us  boldly  to  claim  our 

1  Resolves  of   October   30  and  ^  Resolves    of    December     10 

November    2,     1781.       Journals,       1781.     Journals,  VII.  190. 
VII.    167,   169.  3  Writings,  VIII.  226. 


158  THE  FEDEEAL  CONSTITUTION.  [Book  II. 

rights  and  dictate  the  terms  of  pacification.  "  And 
soon,"  he  said,  "  might  that  day  arrive,  and  we  might 
hope  to  enjoy  all  the  blessings  of  peace,  if  we  could 
see  again  the  same  animation  in  the  cause  of  our 
country  inspiring  every  breast,  the  same  passion  for 
freedom  and  military  glory  impelling  our  youths  to 
the  field,  and  the  same  disinterested  patriotism  per- 
vading every  rank  of  men,  that  was  conspicuous  at 
the  commencement  of  this  glorious  revolution;  and 
I  am  persuaded  that  only  some  great  occasion  was 
wanting,  such  as  the  present  moment  exhibits,  to  re- 
kindle the  latent  sparks  of  that  patriotic  fire  into 
a  generous  flame,  to  rouse  again  the  unconquera- 
ble spirit  of  liberty,  which  has  sometimes  seemed 
to  slumber  for  a  while,  mto  the  full  vigor  of  ac- 
tion." 1 

Notmthstanding  these  urgent  appeals,  the  sprmg 
of  1782  arrived,  and  the  smnmer  passed  away,  mth- 
out  any  substantial  compliance  by  the  States  mth  the 
requisitions  of  Congress  for  either  men  or  money. 
When  Washington  arrived  in  camp,  in  May,  to  com- 
mence the  campaign  that  was  to  extort  from  the 
British  government  —  now  in  the  hands  of  a  new 
ministry,  supposed  to  be  more  favorable  to  peace  — 
the  terms  wliich  he  hoped  might  be  procured,  there 
were  less  than  ten  thousand  men  in  the  Northern 
army ;  and  their  numbers  were  not  much  increased 
during  the  summer.^  Great  and  dangerous  discon- 
tents now  existed  in  the  army,  both  among  ofiicers 

1  Writings,  VIII.  232,  235. 

2  Sparks's  Life  of  Washington,  p.  380. 


Cii.  I.]  THE   CONFEDERATION.  159 

and  soldiers,  concerning  the  arrearages  of  ^Day ;  for, 
as  the  prospects  of  peace  became  brighter,  it  seemed 
to  become  more  and  more  probable,  that  the  army 
would  ultimately  be  disbanded  without  adequate  pro- 
vision for  its  claims,  and  that  officers  and  men  would 
be  thrown  penniless  upon  the  world,  unpaid  by  the 
country  whose  independence  they  had  achieved. 

At  this  period  there  occurred  the  famous  proceed- 
ings of  the  officers,  called  the  Newburgh  Addresses, 
on  the  subject  of  half-pay ;  and  smce  the  claims  of 
the  officers  and  soldiers,  as  public  creditors  of  the 
United  States,  are  intimately  connected  with  the  con- 
stitutional history  of  the  country,  it  is  needful  to  give 
here  a  brief  accoimt  of  them. 

The  pay  of  the  officers  in  the  Revolutionary  army 
was  originally  established  upon  so  low  a  scale,  that 
men  with  families  dependent  upon  them  could  feel 
little  inducement  to  remain  long  in  a  ser\T.ce,  the 
close  of  which  was  to  be  rewarded  only  with  a  patent 
for  a  few  hundred  acres  of  land  m  some  part  of  the 
Western  wilderness.  In  the  year  1778,  it  had  be- 
come apparent  to  Washington,  that  something  must 
be  done  to  avert  the  consequences  of  the  mistaken 
policy  on  which  Congress  had  acted  Avith  reference  to 
the  army ;  and  while  at  Valley  Forge,  —  that  scene 
of  dreadful  suffering  by  the  army,  —  he  wrote  on 
this  subject  to  the  President  of  Congress  the  first  of 
a  series  of  most  able  and  instructive  letters,  which 
extend  through  the  five  follomng  years.^ 

1  Letter  of  April  10,  1778.    Writings  of  Washington,  V,  312. 


160  TEE  FEDERAL  CONSTITUTION.  [Book  II. 

On  the  17tli  of  April,  after  this  first  letter  had 
been  laid  before  Congress,  a  resolution  was  moved, 
that  an  establisliment  of  half-pay  be  made  for  officers, 
who  should  serve  during  the  war ;  to  begin  after  its 
conclusion.-^  Four  days  afterwards,  the  sense  of  the 
house  was  taken  on  the  question,  whether  there 
should  be  any  provision  made  for  the  officers  after 
the  conclusion  of  the  war,  and  the  affirmative  was 
carried,  by  the  votes  of  eight  States  against  four.^ 
On  the  26th  of  April,  a  proposition,  that  half-pay  be 
granted  for  life,  to  commence  at  the  close  of  the  war, 
passed  by  a  majority  of  one  State ;  six  States  voting 
in  the  affirmative,  five  in  the  negative,  and  one  being 
divided.^  The  next  day,  the  value  of  this  vote  was 
destroyed  by  a  resolution,  which  provided  that  the 
United  States  should  have  the  right  to  redeem  the 
half-pay  for  life,  by  giving  to  the  officer  entitled  six 
years'  half-pay;*  and  on  the  15th  of  May,  Congress 
substituted  for  the  whole  scheme  a  provision  of  half- 
pay  for  seven  years,  taking  away  the  option  of  half- 
pay  for  life.^ 

This  misemble  and  vacillating  legislation  shows 
the  unpopidarity  of  the  scheme  of  such  an  establish- 
ment, although  demanded  alike  by  considerations  of 

1  Journals,  IV.  221.  The  State  whose  vote  was  divided 

"  Ibid.  228,  229.      The  States  was  Pennsylvania, 

which  voted  in  the  negative  were  "*  Ibid.  244.     Under  this  resolve, 

Rhode   Island,    Connecticut,   New  each  officer  was  entitled  to  receive 

Jersey,  and  South  Carolina.  half-pay  annually,  for  the  term  of 

3  Ibid.  243.     The  States  voting  seven  years  after  the  conclusion  of 

in    the  negative  were    Massachu-  war,  if  living, 

setts,   Rhode  Island,  Connecticut,  ^  Ibid.  288. 
New  Jersey,  and  South  Carolina. 


Cu.  I.l  THE   CONFEDEKATION.  161 

justice  and  policy.^  The  spiiit  which,  for  a  time, 
actuated  a  large  part  of  the  people  of  tliis  country 
towards  the  men  who  were  suffering  so  much  m  the 
cause  of  national  independence,  evinces  an  extreme 
jealousy  for  the  abstract  prmciples  of  ci\il  liberty, 
unmitigated  by  the  generous  virtues  of  justice  and 
gratitude.  This  spuit  was  duly  represented  in  Con- 
gress. The  main  arguments  employed  out  of  doors 
were,  that  pensions  were  contrary  to  the  maxims  and 
spirit  of  oiu*  institutions ;  that  to  grant  half-pay  for 
life  to  the  officers  was  establishing  a  privileged  class 
of  men,  who  were  to  live  upon  the  public  for  the  rest 
of  their  days ;  and  that  the  officers  entered  the  ser- 
vice on  the  pay  and  inducements  originally  offered, 
without  any  promise  or  prospect  of  such  a  reward. 
This  kind  of  impracticable  adlierence  to  a  principle, 
working  m  this  mstance  the  greatest  injustice  and 
leading  ultimately  to  a  breach  of  public  faith,  was 
the  principal  cause  that  prolonged  the  war,  and 
made  it  cost  so  much  suffering,  so  much  blood,  and 
so  much  treasure.  The  people  of  the  United  States 
adhered  so  tenaciously  to  the  prmciples  and  axi- 
oms of  freedom,  that,  even  when  they  had  under- 
taken a  war  for  their  own  security  and  independence 
against  a  foreign  foe,  they  would  not  establish  a  gov- 
ernment with  the  power  of  direct  taxation,  or  organ- 


1  On  the  21st  of  April,  in  the  pay";  —  an  amendment  which  re- 
resolution  reported  by  a  committee,  veals  very  plainly  the  character  of 
the   words  "  an   establishment   of  the  popular  objections.     Journals, 
half-pay  for  life  "  were,  on  motion,  IV.  228. 
-changed  to  "  a  provision  of  half- 

VOL.    I.  21 


162  ,       THE  FEDEEAL  CONSTITUTION.  [Book  II. 

ize  an  army  with  suitable  rewards  for  service.  The 
want  of  such  a  power  in  their  government  led  to  the 
enormous  emissions  of  paper  money,  which  brought 
with  them  a  long  train  of  sufferings  and  disasters, 
ending  at  last  in  national  bankruptcy.  The  want  of 
justice  to  the  army  placed  the  civil  liberty  of  the 
country  m  imminent  danger,  and  finally  led  to  the 
cruel  oppression  of  men,  whose  valor  had  first  won, 
and  whose  patriotism  then  saved  it  from  destruction. 
In  the  six  months  which  followed  the  vote  of  the 
15th  of  May,  1778,  the  provision  which  it  had  made 
was  found  to  be  wholly  inadequate,  and  General  Wash- 
ington, then  at  Philadelphia*  again  earnestly  pressed 
the  subject  upon  the  attention  of  Congress.  On  the 
11th  of  August,  1779,  a  report  from  a  committee  on 
this  subject  being  under  consideration,  a  motion  was 
made  to  amend  it,  by  inserting  a  provision  that  the 
half-pay  granted  by  the  resolve  of  the  15th  of  May, 
1778,  be  extended  so  as  to  continue  for  life;  and  this 
motion  was  carried  by  a  vote  of  eight  States  against 
four.^  On  the  17th,  Congress  resolved  that  the  con- 
sideration of  that  part  of  the  report  for  extending  the 
half-pay  be  postponed,  and  that  it  be  recommended 
to  the  several  States  that  had  not  already  adopted' 
measures  for  that  purpose,  to  make  such  further  pro- 
vision for  the  officers  and  soldiers  enlisted  for  the 
war,  who  should  continue  in  service  tiU  the  estab- 
lishment of  peace,  as  would  be  an  adequate  compen- 
sation for  theii-  dangers,  losses,  and  hardships,  either 

1  Journals,  V.  312. 


Ch.  I-l  THE   CONTEDEEATION  163 

by  granting  to  the  officers  half-pay  for  life  and  proper 
rewards  to  the  soldiers,  or  in  such  other  manner  as 
might  appear  most  expedient  to  the  legislatures  of 
the  several  States.^ 

Before  the  passage  of  this  resolve,  the  State  of 
Pennsylvania  had  placed  her  officers  upon  an  estab- 
lishment of  half-pay  for  life,  and  with  the  happiest 
consequences.  But  no  other  State  followed  her  ex- 
ample; and  in  the  autumn  of  1780,  it  became  neces- 
sary for  Washington  to  apply  to  Congress  again.^ 
At  length,  m  consequence  of  his  earnest  and  re- 
peated appeals,  a  resolve  was  passed,  on  the  21st  of 
October,  that  the  officers  who  should  continue  in 
service  to  the  end  of  the  war  should  be  entitled  to 
half-pay  dm'ing  life,  to  commence  from  the  time  of 
their  reduction.^ 

From  this  time,  therefore,  the  officers  of  the  army 
continued  in  the  service,  relying  upon  the  faith  of 
the  country,  as  expressed  in  the  vote  of  the  21st  of 
October,  1780,  and  believuig,  until  they  saw  proof  to 
the  contrary,  that  the  public  faith  thus  pledged  to 
them  would  be  observed.*  But  they  were  destined  to 
a  severe  disappointment;  and  one  of  the  causes  of 
that  disappointment  was  the  adoption  of  the  Articles 
of  Confederation.  The  very  change  in  the  constitu- 
tional position  of  the  country,  from  which  the  most 
happy  results  were  anticipated,  and  which  undoubt- 

1  Ibid.  316,  317.  4  See  General  Washington's  let- 

2  Writings  of  Washington,  VII.  ter  to  General  Sullivan  (in  Con- 
165,246.  gress),November  20, 1780.    Writ 

3  Journals,  VI.  336.  ings,  VIT.  297. 


164  THE  FEDERAL  CONSTITUTION.  [Book  H. 

edly  cemented  the  Union,  became  the  means  by  which 
they  were  cheated  of  their  hopes.  The  Congress  of 
1780,  wliich  had  pledged  to  them  a  half-pay  for  life, 
was  the  Revolutionary  Congress;  but  the  Congress 
which  was  to  redeem  this  pledge  was  the  Congress 
of  the  Confederation,  which  required  a  vote  of  nine 
States  for  an  appropriation  of  money,  or  a  call  upon 
the  States  for  their  proportions.  Wlien  the  vote 
granting  the  half-pay  for  life  was  passed,  there  were 
less  than  nme  States  in  favor  of  the  measure ;  and 
after  the  Confederation  was  established,  the  delegates 
of  the  States  which  originally  opposed  the  provision 
could  not  be  brought  to  consider  it  in  its  true  light, — 
that  of  a  compact  with  the  officers.  It  was  even  con- 
tended that  the  vote,  having  passed  before  the  Con- 
federation was  signed  and  acted  upon,  was  not  oblig- 
atory upon  the  Congress  under  the  Confederation,  as 
that  instrument  required  the  votes  of  nme  States  for 
an  appropriation  of  money.  In  this  manner,  men 
deluded  themselves  with  the  notion,  that  a  change  in 
the  form  of  a  government,  or  in  the  constitutional 
method  of  raising  money  to  discharge  the  obligations 
of  a  contract,  can  dissolve  those  obligations,  or  alter 
the  principles  of  justice  on  which  they  depend.  The 
States  in  the  opposition  to  the  measure  refused  to  be 
coerced,  as  they  were  pleased  to  consider  it,  and  in 
the  autumn  of  1782,  the  officers  became  convinced 
that  they  had  nothmg  to  hope  for  from  Congress, 
but  a  reference  of  their  claims  to  then-  several  States.-* 

*  See  the  letter  of  General  Lin-      ington,  cited  by  Mr.  Sparks,  VIII 
coin,  Secretary  at  War,  to  Wash-      356. 


Ch.  I.]  THE  CONTEDERATION.  165 

In  November,  1782,  preliminary  and  eventual  arti- 
cles of  peace  were  agreed  upon  between  the  United 
States  and  Great  Britain,  by  their  plenipotentiaries. 
Nothing  had  been  done  by  Congress  for  the  claims 
of  the  army,  and  it  seemed  highly  probable  that  it 
would  be  disbanded  without  even  a  settlement  of  the 
accounts  of  the  officers,  and  if  so,  that  they  would 
never  receive  their  dues.  Alarmed  and  irritated  by 
the  neglect  of  Congress;  destitute  of  money  and  cred- 
it and  of  the  means  of  living  from  day  to  day;  op- 
pressed with  debts ;  saddened  by  the  distresses  of  their 
families  at  home,  and  by  the  prospect  of  misery  be- 
fore them,  —  they  presented  a  memorial  to  Congress 
in  December,  in  which  they  urged  the  immediate 
adjustment  of  their  dues,  and  offered  to  commute  the 
half-pay  for  life,  granted  by  the  resolve  of  October, 
1780,  for  full  pay  for  a  certain  number  of  years,  or 
for  such  a  sum  m  gross,  as  should  be  agreed  on  by 
their  committee  sent  to  Philadelphia  to  attend  the 
progress  of  the  memorial  through  the  house.  It  is 
manifest  from  statements  in  this  document,  as  well 
as  from  other  evidence,  that  the  officers  were  nearly 
driven  to  desperation,  and  that  their  offer  of  commu- 
tation was  wrung  from  them  by  a  state  of  public 
opinion  little  creditable  to  the  countr}^  They  recited 
their  hardships,  their  poverty,  and  their  exertions  in 
the  cause ;  and  all  that  they  said  was  fully  borne  out 
by  their  great  commander,  in  his  personal  remon- 
strances with  many  of  the  members  of  Congress. 
The  officers  asserted,  that  many  of  their  brethren, 
who  had  retired  on  the  half-pay  promised  by  the  re- 


166  THE  FEDERAL  CONSTITUTION.  [Book  H. 

solve  of  1780,  were  not  only  destitute  of  any  effect- 
ual provision,  but  had  become  objects  of  obloquy; 
and  they  referred  with  chagrin  to  the  odious  view  in 
which  the  citizens  of  too  many  of  the  States  endeav- 
ored to  place  those  who  were  entitled  to  that  pro- 
vision. 

But,  fi:om  the  prevailing  feeling  in  Congress  and  in 
the  country,  nothing  better  was  to  be  expected  than 
a  compromise  in  place  of  the  discharge  of  a  solemn 
obligation;  and  this  feelmg  no  American  historian 
should  fail  to  record  and  to  condemn.  If  these  men 
had  borne  only  the  character  of  public  creditors,  a 
state  of  public  feeling  which  drove  them  into  a  com- 
promise of  theu'  claims  ought  always  to  be  severely 
reprehended.  But,  beyond  the  capacity  of  public 
creditors,  they  were  the  men  who  had  fought  the 
battles  which  liberated  the  country  from  a  foreign 
yoke ;  who  had  endured  every  extremity  of  hardship, 
every  form  of  suffering,  which  the  life  of  a  soldier 
knows ;  who  had  stood  between  the  common  soldiery 
and  the  civil  power ;  and  often,  at  the  hazard  of  their 
lives,  preserved  that  disciplme  and  subordination 
which  the  civil  power  had  done  too  much  to  hazard. 
They  were,  in  a  word,  the  men  of  whom  their  com- 
mander said,  that  they  had  exliibited  more  virtue, 
fortitude,  self-denial,  and  perseverance,  than  had  per- 
haps been  then  paralleled  in  the  history  of  human 
enthusiasm. 

Painful,  therefore,  as  it  is,  this  lesson,  of  the  wrong 
that  may  be  done  by  a  breach  of  public  faith,  must  he 
read.     It  lies  open  on  the  page  of  history,  and  is  the 


Ch.  I.J  THE   CONFEDERATION.  167 

case  of  those  to  whose  right  arms  the  people  of  this 
country  owe  the  splendid  inheritance  of  liberty.  All 
real  palliations  should  be  sought  for  and  admitted. 
The  countf y  was  poor :  no  proper  system  of  finance 
had  been,  or  could  be,  developed  by  a  government 
which  had  no  power  of  taxation ;  and  the  ideas  and 
feelings  of  the  people  of  many  of  the  States  were  pro- 
vincial, and  without  the  liberality  and  enlargement 
of  thought  which  comes  of  intercourse  with  the 
world.  But,  after  every  apology  has  exhausted  its 
force,  the  conscientious  student  of  history  must  mark 
the  dereliction  from  public  duty ;  must  admit  what 
the  public  faith  required ;  and  must  observe  the  dan- 
gerous consequences  which  attend,  and  must  ever 
attend,  the  breach  of  a  public  obligation. 

The  unmediate  consequences  which  followed,  in 
this  instance,  were  predicted  by  General  Washmgton, 
who  gave  the  clearest  warning,  in  advance  of  the 
officers'  memorial,  of  the  hazards  that  would  attend 
the  further  neglect  of  their  claims.  But  his  warn- 
ing seems  to  have  been  unheeded,  or  to  have  made 
but  little  impression  against  the  prevailmg  aversion 
to  touch  the  unpopular  subject  of  half-pay.  The 
committee  of  the  officers  were  m  attendance  upon 
Congress  diuing  the  whole  winter,  and  early  in 
March,  1783,  they  wrote  to  their  constituents  that 
nothing  had  been  done. 

At  this  moment,  the  predicament  in  which  Wash- 
ington stood,  in  the  double  relation  of  citizen  and 
soldier,  was  critical  and  delicate  ui  the  extreme.  In 
the  course  of  a  few  days,  all  his  finnness  and  patriot- 


168  THE  FEDEEAL  CONSTITUTION.  [Book  II. 

ism,  all  his  sympathies  as  an  officer,  on  the  one  side, 
and  his  fidelity  to  the  government  on  the  other,  were 
severely  tried.  On  the  10  th  of  March,  an  anonymous 
address  was  cu'culated  among  the  officers  at  New- 
burgh,  calling  a  meeting  of  the  general  and  field 
officers,  and  of  one  officer  from  each  company,  and 
one  from  the  medical  staff,  to  consider  the  late  letter 
from  their  representatives  at  Philadelphia,  and  to 
determine  what  measures  should  be  adopted  to  ob- 
tain that  redress  of  grievances  which  they  seemed 
to  have  solicited  in  vain.  It  was  written  with  great 
ability  and  skill.^  It  spoke  the  language  of  injured 
feeling ;  it  pointed  directly  to  the  sword,  as  the  rem- 
edy for  injustice ;  and  it  spoke  to  men  who  were  suf- 
fering keenly  under  public  ingratitude  and  neglect. 
Its  eloquence  and  its  passion  fell,  therefore,  upon 
hearts  not  insensible,  and  a  dangerous  explosion 
seemed  to  be  at  hand.  Washington  met  the  crisis 
with  firmness,  but  also  mth  conciliation.  He  issued 
orders  forbidding  an  assemblage  at  the  call  of  an 
anonymous  paper,  and  directing  the  officers  to  assem- 
ble on  Saturday,  the  15th,  to  hear  the  report  of  thfeu* 
committee,  and  to  deliberate  what  further  measures 
ought  to  be  adopted  as  most  rational  and  best  calcu 

1  The  "  Newburgli  Addresses "  of  these  papers,  considering  the 
were  written  by  John  Armstrong,  period  when  they  appeared,  is  re- 
(afterwards  General  Armstrong,)  markably  good.  They  are  writ 
then  a  young  man,  and  aide-de-  ten  with  great  point  and  vigor  of 
camp  to  General  Gates,  with  the  expression  and  great  purity  of  Eng- 
rank  of  Major.  (Sparks's  Life  of  lish.  For  the  purpose  for  which 
Gouverneur  Morris,  I.  253.  Unit-  they  were  designed,  —  a  direct  ap- 
ed States  Magazine  for  January  1,  peal  to  feeling,  —  they  show  the 
1823,    New   York.)       The    style  hand  of  a  master. 


Ch.  I.]  THE   COKFEDERATION.  169 

lated  to  obtain  the  just  and  important  object  in  view. 
The  senior  officer  in  rank  present  was  dii'ected  to 
preside,  and  to  report  the  result  to  the  Commander- 
in-chief. 

On  the  next  day  after  these  orders  were  issued,  a 
second  anonymous  address  appeared  from  the  same 
writer.  In  this  paper,  he  affec|;ed  to  consider  the 
orders  of  General  Washington,  assuming  the  direc-' 
tion  of  tlije  meetmg,  as  a  sanction  of  the  whole  pro- 
ceeding which  he  had  proposed.  Washington  saw, 
at  once,  that  he  must  be  present  at  the  meeting  him- 
self, or  that  his  name  would  be  used  to  justify  meas- 
ures which  he  intended  to  discountenance  and  pre- 
vent. He  therefore  attended  the  meeting,  and  under 
his  influence,  seconded  by  that  of  Putnam,  Knox, 
Brooks,  and  Howard,  the  result  was  the  adoption  of 
certain  resolutions,  in  which  the  officers,  after  reas- 
serting thek  grievances,  and  rebukuig  all  attempts  to 
seduce  them  from  then-  civil  allegiance,  referred  the 
whole  subject  of  their  claims  again  to  the  considera- 
tion of  Congress. 

Even  at  this  distant  day,  the  peril  of  that  crisis  can 
scarcely  be  contemplated  without  a  shudder.  Had 
the  Commander-m-chief  been  other  than  Washing- 
ton, had  the  leading  officers  by  whom  he  was  sur- 
rounded been  less  than  the  noblest  of  patriots,  the 
land  would  have  been  deluged  with  the  blood  of  a 
civil  war.  But  men  who  had  suffered  Avhat  the  great 
officers  of  the  Revolution  had  suflered,  had  learned 
the  lessons  of  self-control  which  suffering  teaches. 
The  hard   school  of  adversity  in  which   they  had 

VOL.  I.  22 


no  THE  FEDERAL  CONSTITUTION.  [Book  IL 

passed  so  many  years  made  them  sensible  to  an  ap- 
peal wliicli  only  such  a  chief  as  "Washington  could 
make;  and,  when  he  transmitted  their  resolves  to 
Congress,  he  truly  described  them  as  "  the  last  glori- 
ous proof  of  patriotism  which  could  have  been  given 
by  men  who  aspired  to  the  distinction  of  a  patriot 
army ;  not  only  confirming  their  claim  to  the  justice, 
but  increasmg  their  title  to  the  gratitude,  of  then 
country."  -^ 

The  effect  of  these  proceedings  was  the  passage  by 
Congress  of  certain  resolves,  on  the  22d  of  March, 
1783,  commuting  the  half-pay  for  life  to  five  years' 
full  pay  after  the  close  of  the  war,  to  be  received,  at 
the  option  of  Congress,  in  money,  or  m  such  securi- 
ties as  were  given  to  other  creditors  of  the  United 
States.^  On  the  4:th  of  July,  the  accounts  of  the 
army  were  ordered  to  be  made  up  and  adjusted,  and 
certificates  of  the  simis  due  were  required  to  be  given 
hi  the  form  directed  by  the  Superintendent  of  the 
Finances.  On  the  18th  of  October,  a  proclamation 
was  issued,  disbandmg  the  araiy. 

From  this  time,  the  officers  passed  into  the  whole 
mass  of  the  creditors  of  the  United  States ;  and  al- 
though they  continued  to  constitute  a  distmct  class 
among  those  creditors,  the  history  of  their  claims  is 
to  be  x>ursued  m  connection  with  that  of  the  other 


1  March   18,   1783,      Writings,  and  not  to  the  officers  individually 
VIII.  396.  in  those  lines,  to  accept  or  refuse 

2  The  resolves  gave  the  option  the  commutation.     Journals,  VIII, 
to  lines  of  the  respective  States,  162. 


Ch.  I.]  THE   CONFEDERATION.  171 

public  debts  of  the  country.  The  value  of  the  votes 
which  fixed  their  compensation,  and  paid  them  in 
public  securities,  depended,  of  course,  upon  the  abili- 
ty of  the  government  to  redeem  the  obhgations  which 
it  issued.  The  general  financial  powers  of  the  Union, 
therefore,  under  the  Confederation,  must  now  be  con- 
sidered. 


CHAPTER  II. 

1781-1783. 

Financial   Difficulties  of   the   Confederation.  —  Revolutionary 
Debt.  —  Revenue  System  of  1783. 


It  is  not  easy  to  ascertain  the  amount  of  the  public 
debt  of  the  United  States,  at  the  time  when  the  Con- 
federation went  into  operation.  But  on  the  1st  of 
January,  1783,  it  amounted  to  about  forty-two  mil- 
lions of  dollars.  About  eight  millions  were  due  on 
loans  obtained  in  France  and  Holland,  and  the  resi- 
due was  due  to  citizens  of  the  United  States.  The 
annual  interest  of  the  debt  was  a  little  more  than 
two  million  four  hundred  thousand  dollars.-^ 


^  The  debt  due  to  the  crown  of 
France  was  ascertained  in  1782  to 
be  eighteen  millions  of  livres  ;  and 
by  the  contract  entered  into  by  the 
United  States  with  the  king  of 
France,  on  the  I6th  of  July,  1782, 
the  principal  of  this  debt  was  to  be 
paid  in  twelve  annual  instalments  of 
one  million  five  hundred  thousand 
livres  each,  in  twelve  years,  to  com- 
mence from  the  third  year  after  a 
peace,  at  the  royal  treasury  in  Paris. 
The  interest  was  payable  annually, 
at  the  time  and  place  stipulated  for 
the  payment  of  the  instalments  of  the 


principal,  at  five  per  cent.  The 
king  generously  remitted  th6  ar- 
rears of  interest  due  at  the  date  of 
the  contract.  There  was  also  due 
to  the  king  of  France  ten  millions 
of  livres,  borrowed  by  him  of  the 
States-General  of  the  Netherlands 
for  the  use  of  the  United  States, 
and  the  payment  of  which  he  had 
guaranteed.  This  sum  was  to  be 
paid  in  Paris,  in  ten  annual  instal- 
ments of  one  million  of  livres  each, 
commencing  on  the  5th  of  Novem- 
ber, 1787.  The  interest  on  this 
loan  was  payable  in  Paris  imme- 


Ch.  n.]  THE   CONFEDERATION.  173 

The  Confederation  had  no  sooner  gone  mto  opera- 
tion, than  it  was  perceived  by  many  of  the  principal 
statesmen  of  the  country,  that  its  financial  powers 
were  so  entkely  defective,  that  Congress  would  never 
be  able,  under  them,  to  pay  even  the  interest  on  the 
public  debt.  Indeed,  before  the  Confederation  was 
finally  ratified,  so  as  to  become  obligatory  upon  all 
the  States,  on  the  3d  of  February,  1781,  Congress 
passed  a  resolve,  recommending  to  the  several  States, 
as  indispensably  necessary,  to  vest  a  power  m  Con- 
gress to  levy  for  the  use  of  the  United  States  a  duty 
of  five  per  cent,  ad  valorem^  at  the  tune  and  place  of 
importation,  upon  all  foreign  goods  and  merchandise 
imported  into  any  of  the  States ;  and  that  the  money 
arising  from  such  duties  should  be  appropriated  to 
the  discharge  of  the  principal  and  interest  of  the 
debts  already  then  contracted,  or  wliich  might  be 
contracted,  on  the  faith  of  the  United  States,  for  the 
support  of  the  war ;  the  duties  to  be  continued  until 
the  debts  should  be  fully  and  finally  discharged. 


diately,  and  tjie  first  payment  of  ten  millions  of  livres,  amounting  ti 
interest  became  due  on  the  5th  of  $  26,848  ;  —  making  the  whole  for- 
November,  1782.  There  was  also  eign  debt  $7,885,085.  The  domes- 
due  to  the  Farmers-General  of  tic  debt  amounted  to  $34,115,290. 
France  one  million  of  livres,  and  Five  millions  of  this  were  due  to 
to  the  king  six  millions  of  livres,  the  army,  under  the  commutation 
on  a  loan  for  the  year  1783  ;  mak-  resolves  of  March,  1783.  The  res- 
ing  in  the  whole  thirty-eight  mil-  idue  was  held  by  other  citizens,  or 
lions  of  livres,  or  $  7,037,037,  consisted  of  arrears  of  interest, 
due  in  France.  There  was  also  The  whole  debt  of  the  United  States 
due  to  money-lenders  in  Holland  was  estimated  at  $42,000,375,  and 
$671,000  ;  for  money  borrowed  by  the  annual  interest  of  this  sum  was 
Mr.  Jay  in  Spain,  $  150,000  ;  and  a  $  2,415,956. 
year's  interest  on  the  Dutch  loan  of  ' 


174  THE   FEDERAL   CONSTITUTION.  [Book  II. 

It  was  at  this  time  that  the  office  of  Superintend- 
ent of  the  Finances  was  estahlished,  and  Robert 
Morris  was  unanimously  elected  by  Congress  to  fill 
it.  He  was  an  eminent  merchant  of  Philadelphia, 
of  known  financial  skill,  devoted  to  the  cause  of  the 
country,  and  possessed  of  very  considerable  private 
resources,  which  he  more  than  once  sacrificed  to  the 
public  service.  Under  his  administration,  it  is  more 
than  probable  that,  if  the  States  had  comphed  mth 
the  requisitions  of  Congress,  the  war  would  have 
been  brought  to  a  close  at  an  earher  period.  But 
there  was  scarcely  any  compliance  with  those  requi- 
sitions, and,  contemporaneously  with  this  neglect, 
the  proposal  to  vest  in  Congress  the  power  to  levy 
duties  met  "with  serious  opposition.  On  the  30th  of 
October,  1781,  Congress  made  a  requisition  upon  the 
States  for  eight  millions  of  dollars,  to  meet  the  service 
of  the  ensuing  year.  In  January,  1783,  one  year  and 
three  months  from  the  date  of  this  requisition,  less 
than  half  a  million  of  this  sum  had  been  received 
into  the  treasury  of  the  United  States.  After  a 
delay  of  nearly  two  years,  one  State  entirely  refused 
its  concurrence  with  the  plan  of  vesting  in  Congress 
a  power  to  levy  duties,  another  mthdi'ew  the  assent 
it  had  once  given,  and  a  third  had  returned  no  an- 
swer. 

The  State  which  refused  to  grant  this  power  to 
Congress  was  Khode  Island.  On  the  6th  of  Decem- 
ber, 1782,  Congress  determmed  to  send  a  deputation 
to  that  State,  to  endeavor  to  procure  its  assent  to  this 
constitutional  change.     The  increasing  discontents  of 


Ch.  II.l  THE   CONTEDERATION.  175 

the  army,  the  loud  clamors  of  the  public  creditors, 
the  extreme  disproportion  between  the  current  means 
and  the  demands  of  the  public  service,  and  the  im- 
possibility of  obtammg  further  loans  in  Europe  un- 
less some  security  could  be  held  out  to  lenders,  madq^ 
it  necessary  for  Congress  to  be  especially  urgent  with 
the  legislature  of  Rhode  Island.  But,  at  the  moment 
when  the  deputation  was  about  to  depart  on  this 
mission,  the  intelligence  was  received  that  Virginia 
had  repealed  the  act  by  which  she  had  previously 
granted  to  Congress  the  power  of  laying  duties,  and 
the  proposal  was  therefore  abandoned  for  a  time.^ 
But  the  leading  persons  then  in  Congress  —  who  saw 
the  ruin  impending  over  the  country;  who  were 
aware  that  the  whole  amount  of  money  which  Con- 
gress had  received,  to  carry  on  the  public  business  for 
the  year  then  just  expiring,  was  less  than  two  mil- 
lions of  dollars,^  while  the  three  branches  of  feeding, 
clothing,  and  paying  the  army  exceeded  five  millions 
of  dollars  per  annum,  exclusive  of  all  other  depart- 
ments of  the  public  service ;  and  who  were  equally 
aware  thn,t  no  means  whatever  existed  of  paying  the 
interest  on  the  public  debts  —  resolved  still  to  perse- 
vere in  their  endeavors  to  procure  the  establishment 

^  Mr.  Madison  (under  the  date  was  at  length,  notwithstanding,  de- 

of  December  24,  1782)  says,  that,  termined  to  persist  in  the  attempt 

on  the  receipt  of  this  intelligence,  for  permanent  revenue,  and  a  com- 

"  the  most  intelligent  members  were  mittee  was  appointed  to  report  the 

deeply  affected,  and  prognosticated  steps  proper  to  betaken."    Debates 

a  failure  of  the  impost  scheme,  and  in  the  Congress  of  the  Confedera- 

the  most  pernicious  effects  to  the  tion,  Elliot,  I.  17. 
character,    the    duration,   and   the  ~  $l,545,818|g  was   the  whole 

interests  of  the  Confederacy.      It  amount. 


1T6  THE  FEDERiVIi  CONSTITUTION.  [Book  II. 

of  revenues  equal  to  the  pui-pose  of  funding  all  the 
debts  of  the  United  States. 

Among  these  persons,  Hamilton  and  Madison  were 
the  most  active;  and  the  part  which  they  took,  at 
this  period,  in  the  measures  for  sustauiing  the  sulk- 
ing credit  of  the  country,  and  the  efforts  v^hich  they 
made,  are  among  the  less  conspicuous,  but  not  less 
unportant  services,  which  those  great  men  performed 
for  their  country.  Another  plan  was  devised,  after 
the  failure  of  that  of  1781,  for  investing  Congress 
with  a  power  to  derive  a  revenue  from  duties,  and,  in 
April,  1783,  its  promoters  procured  for  it  the  almost 
unanimous  consent  of  Congress.  This  plan  recom- 
mended the  States  to  vest  in  Congress  the  power  of 
levying  certain  duties  upon  goods  imported  into  the 
country,  partly  specific  and  partly  ad  valorem;  the 
proceeds  of  such  duties  to  be  applied  to  the  discharge 
of  the  iixterest  or  principal  of  the  debts  incurred  by 
the  United  States  for  supporting  the  war.  The  duties 
were  to  be  collected  by  collectors  appointed  by  the 
States,  but  accountable  to  Congress.  It  also  recom- 
mended to  the  States  to  establish,  for  a  term  of  twen- 
ty-five years,  substantial  and  effectual  revenues,  exclu- 
sive of  the  duties  to  be  levied  by  Congress  for  sup- 
plying their  proportions  of  fifteen  millions  of  dollars 
annually,  for  the  same  purpose ;  and  that,  when  this 
plan  had  been  acceded  to  by  all  the  States,  it  shoidd 
be  considered  as  formmg  a  mutual  compact,  irrevo- 
cable by  one  or  more  of  them  without  the  consent 
of  the  whole.  It  was  also  proposed  that  the  rule 
of  proportion  fixed  by  the  Confederation  should  be 


Ch.  II.] 


THE   COXFEDERATION, 


117 


changed  from  the  basis  of  real  estate  to  the  basis  of 
po^)ulation. 

This  plan  was  sent  out  to  the  States,  accompanied 
by  an  address,  prepared  by  Mr.  Madison,  in  which 
the  necessity  of  the  measure  was  urged  with  much 
ability  and  force.  Annexed  to  this  paper  were  va- 
rious documents,  exhibiting  the  nature  and  origin  of 
the  public  debts,  and  the  meritorious  characters  of 
the  various  public  creditors ;  the  whole  of  the  New- 
burgh  Addresses,  and  the  proceedmgs  of  the  officers ; 
the  contracts  made  with  the  king  of  France ;  and  a 
very  able  answer  by  Hamilton  to  the  objections  of 
Rhode  Island.  No  stronger  and  more  direct  appeal 
was  ever  made  to  the  sense  of  right  of  any  people. 
Never  was  the  cause  of  national  honor,  public  faith, 
and  public  safety  more  powerfully  and  eloquently  set 
forth.1 


1  On  the  final  question,  as  to 
the  revenue  system,  Hamilton  voted 
against  it.  His  reasons  were  given 
in  a  letter  to  the  Governor  of  New 
York,  under  date  of  April  14,  1783. 
They  were,  "First,  that  it  does 
not  designate  the  funds  (except  the 
impost)  on  which  the  whole  inter- 
est is  to  arise  ;  and  by  which  (se- 
lecting the  capital  articles  of  visi- 
ble property)  the  collection  would 
have  been  easy,  the  funds  produc- 
tive, and  necessarily  increasing  with 
the  increase  of  the  country.  Sec- 
ondly, that  the  duration  of  the  funds 
is  not  coextensive  with  the  debt, 
but  limited  to  twenty-five  years, 
though  there  is  a  moral  certainty 
tliat  in  that   period   the   principal 

VOL.  I.  23 


will  not,  by  the  present  provision, 
be  fairly  extinguished.  Thirdly, 
that  the  nomination  and  appoint- 
ment of  the  collectors  of  the  reve- 
nue are  to  reside  in  each  State,  in- 
stead of,  at  least,  the  nomination 
being  in  the  United  States ;  the 
consequence  of  which  will  be,  that 
those  States  which  have  little  in- 
terest in  the  funds,  by  having  a 
small  share  of  the  public  debt  due 
to  their  own  citizens,  will  take  care 
to  appoint  such  persons  as  are  the 
least  likely  to  collect  the  revenue." 
Still,  he  urged  the  adoption  of  the 
plan  by  his  own  State,  "  because 
it  is  her  interest,  at  all  events,  to 
promote  the  payment  of  the  public 
debt  in  continental  funds,  indepen- 


178  THE  FEDEEAL  CONSTITUTION.  [Book  II. 

And  when  we  consider  the  various  classes  of  the 
public  creditors,  at  the  close  of  the  war,  and  remem- 
ber that  the  debts  of  the  country  had  been  contracted 
for  the  great  purpose  of  establishing  its  independ- 
ence, and  that  there  was  scarcely  a  creditor  who  had 
not  some  claim  to  the  gratitude  of  the  country,  we 
cannot  but  be  astonished  that  such  an  appeal  as  was 
then  made  should  have  fallen,  as  it  did,  unheeded 
upon  the  legislatures  and  people  of  many  of  the 
States.  In  the  first  place,  the  debts  were  due  to  an 
ally,  the  generous  king  of  France,  who  had  loaned 
to  the  American  people  his  armies  and  his  treasures  ; 
who  had  added  to  his  loans  liberal  donations ;  and 
whose  very  contracts  for  repayment  contained  proof 
of  his  magnanimity.  In  the  next  place,  they  were 
due  to  that  noble  band  of  officers  and  soldiers,  who 
had  fought  the  battles  of  their  country,  and  who 
now  asked  only  such  a  portion  of  tlieil*  dues  as 
would  enable  them  to  retire,  mth  the  means  of  daily 
bread,  from  the  field  of  ^dctory  and  glory  into  the 


dent  of  the  general  considerations  long  already  sacrificed  to  tlic  pub- 
of  union  and  propriety.  I  am  much  lie  convenience.  It  will  be  shock- 
mistaken,  if  the  debts  due  from  the  ing,  and,  indeed,  an  eternal  re- 
United  States  to  the  citizens  of  the  proach  to  this  country,  if  we  begin 
State  of  New  York  do  not  consid-  the  peaceable  enjoyment  of  our  in- 
erably  exceed  its  proportion  of  the  dependence  by  a  violation  of  all  the 
necessary  funds ;  of  course,  it  has  principles  of  honesty  and  true  pol- 
an  immediate  interest  that  there  icy.  It  is  worthy  of  remark,  that 
should  be  a  continental  provision  at  least  four  fifths  of  the  domestic 
for  them.  But  there  are  superior  debt  are  due  to  the  citizens  of  the 
motives  that  ought  to  operate  in  States  from  Pennsylvania,  inclu- 
every  State, —  the  obligations  of  sively,  northward."  Life  of  Ham- 
national  faith,  honor,  and  reputa-  ilton,  II.  185,  186. 
tion.      Individuals  have  been  too 


Ch.  n.]  THE  CONTEDERATION.  179 

bosom  of  peace  and  privacy,  and  such  effectual  secu- 
rity for  the  residue  of  their  claims,  as  their  country 
was  unquestionably  able  to  provide.  In  the  last 
place,  they  were  due  partly  to  those  citizens  of  the 
country  who  had  lent  their  funds  to  the  public,  or 
manifested  their  confidence  in  the  government  by 
receiving  transfers  of  public  securities  firom  those 
who  had  so  lent,  and  partly  to  those  whose  prop- 
erty had  been  taken  for  the  public  service.-^ 

The  United  States  had  achieved  their  indepen- 
dence. They  were  about  to  take  rank  among  the 
nations  of  the  world.  As  they  should  meet  this  cri- 
sis, their  character  would  be  determined.  The  rights 
for  which  they  had  contended  were  the  rights  of  hu- 
man nature.  These  rights  had  triumphed,  and  now 
formed  the  basis  of  the  civil  polity  of  thhteen  inde- 
pendent States.  The  forms  of  republican  government 
were  therefore  called  upon  to  justify  themselves  by 
their  fruits.  The  higher  qualities  of  national  char- 
acter— justice,  good  faith,  honor,  gratitude  —  were 
called  upon  to  display  an  example,  that  woidd  save 
the  cause  of  republican  liberty  from  reproach  and 
disgrace.^ 

But,  unhappily,  the  establishment  of  peace  tended 
to  weaken  the  slender  bond  which  held  the  Union 
together,  by  turning  the  attention  of  men  to  the  in- 
ternal affau's  of  their  o-svn  States.  The  advantage 
and  the  necessity  of  giving  the  regulation  of  foreign 
commerce  to  the  general  government,  if  perceived  Ht 

1  Address.  2  ibid. 


180  THE  FEDERAL  CONSTITUTION.  [Book  n. 

all,  was  perceived  only  by  a  few  leading  statesmen. 
The  commercial  States  fancied  that  they  profited  by  a 
condition  of  things  which  enabled  them  as  imj)orters 
to  levy  contribution  on  then*  neighbors.  The  people 
did  not  as  yet  perceive,  that,  Avithout  some  central 
authority  to  regulate  the  whole  trade  alike,  the  clash- 
ing regulations  of  rival  States  would  sooner  or  later 
destroy  the  Confederacy.  Nor  were  they  willing  to 
be  taxed  for  the  payment  of  the  public  debts.  The 
people  of  the  United  States  had  not  yet  begun  to  feel, 
that  such  a  burden  is  to  be  borne  as  one  of  the  first 
of  public  aixd  social  duties.  That  part  of  the  finan- 
cial plan  of  1783,  which  required  from  the  States  a 
pledge  of  internal  revenues  for  twenty-five  years,  met 
with  so  much  opposition,  that  Congress  was  obliged 
to  abandon  it,  and  to  confine  its  efi'orts  to  that  part 
of  the  scheme  which  related  to  the  duties  on  imports. 
In  1786,  all  the  States,  except  New  York,  had  com- 
plied with  the  latter  part  of  the  plan ;  but  the  refusal 
of  that  State  rendered  the  whole  of  it  inoperative, 
and  no  resoui'ce  remained  to  Congress,  after  the  close 
of  the  war,  but  the  old  method  of  making  requi- 
sitions on  the  States,  under  the  rule  of  the  Confed- 
eration.-^ 

1  With  what  success  this  was  of  this  sum  had  been  received.  The 

attended  may  be  seen  from  the  fact,  interest  of  the  debt  due  to  domestic 

that,   from  the  year  1782  to  the  creditors  remained  wholly  unpaid ; 

year  1786,  Congress  made  requi-  money  was  borrowed  in  Europe  to 

sitions  on  the  States  for  the  pur-  pay   the    interest   on   the    foreign 

pose  of  paying  the  interest  on  the  loans ;  and  the  domestic  debt  sunk 

public  debts,  of  more  than  six  mil-  to  so  low  a  value,  that  it  was  often 

lions  of  dollars,  and  on  the  31st  of  sold  for  one  tenth  of  its  nominal 

March,  1787,  about  one  million  only  amount. 


Ch.  ii.]  the  coneederation.  181 

At  the  return  of  peace,  therefore,  the  Confedera- 
tion had  had  a  trial  of  two  years  and  six  months,  as 
a  government  for  purposes  of  war.  It  was  for  these 
purposes,  mainly,  that  it  was  established;  bemg-  in 
fact,  as  it  was  in  name,  a  league  of  friendship  between 
sovereign  States,  for  their  common  defence,  the  secu- 
rity of  their  liberties,  and  their  mutual  and  general 
welfare ;  the  parties  to  which  had  bound  themselves 
by  it  to  assist  each  other  agamst  all  external  attacks. 
Doubtless  the  framers  of  the  Confederation  contem- 
plated its  duration  beyond  the  period  of  the  war ;  for, 
besides  the  perpetual  character  of  the  Union,  which 
it  sought  and  professed  to  establish,  it  had  certain 
functions  which  were  manifestly  to  be  exercised  in 
peace  as  well  as  m  war.  These  fmictions,  however, 
were  few.  The  government  was  framed  during  a 
revolutionary  war,  for  the  purposes  of  that  war,  and 
it  went  into  operation  while  the  war  was  still  waged; 
taking  the  place  and  superseding  the  powers  of  the 
Revolutionary  Congress,  under  which  the  war  had 
been  commenced  and  prosecuted. 

A  written  constitution,  with  a  precise  and  well 
defined  mode  of  operation,  had  thus  succeeded  to  the 
vague  and  indefinite,  but  ample,  powers  of  the  earlier 
government.  But  in  the  very  modes  of  its  operation, 
there  was  a  monstrous  defect,  which  distorted  the 
whole  system  from  the  true  proportions  and  charac- 
ter of  a  gove)*nment.  It  gave  to  the  Confederation  the 
power  of  contracting  debts,  and  at  the  same  time  with- 
held from  it  the  power  of  pa}dng  them.  It  created  a 
corporate  body,  formed  by  the  Union  and  known  as 


182  THE  FEDERAL  CONSTITUTION.  [Book  II. 

the  United  States,  and  gave  to  it  the  faculty  of  bor- 
rowing money  and  incurring  other  obligations.  It 
provided  the  mode  in  which  its  treasuiy  should  be 
supplied  for  the  remibursement  of  the  public  creditor. 
But  over  the  sources  of  that  supply,  it  gave  the  gov- 
ernment contracting  the  debts  no  power  whatever. 
Thirteen  independent  legislatures  granted  or  with- 
held the  means  which  were  to  enable  the  general 
government  to  pay  the  debts  which  the  general  con- 
stitution had  enabled  it  to  contract,  accorduig  to  their 
own  convenience  or  their  own  views  and  feelings  as 
to  the  purposes  for  which  those  debts  had  been  in- 
curred. Yet  the  debts  were  wholly  national  in  their 
character,  and  by  the  nation  they  w^ere  to  be  dis- 
charged. But,  by  the  operation  of  the  system  under 
which  the  nation  had  undertaken  to  discharge  its 
obligations,  the  duty  of  performance  was  parcelled 
out  among  the  various  subordinate  corporations  of 
States,  and  the  comitry  was  thus  placed  in  the  po- 
sition of  an  empire  whose  power  was  at  the  mercy 
of  its  provinces,  and  was  sure  to  be  controlled  by 
provincial  objects  and  ideas. 

A  government  thus  situated,  engaged  in  the  prose- 
cution of  a  war,  perpetually  borrowuig,  but  never 
paying,  and  scarce  likely  ever  to  pay,  was  m  a  po- 
sition to  prosecute  that  war  with  far  less  than  the 
real  energies  and  resources  of  the  nation :  and  it 
stands  the  recorded  opinion  of  him  who  conducted 
his  country  through  the  whole  struggle,  and  with- 
out whom  it  could  not,  under  this  defective  sys- 
tem, have  achieved  its  independence,  that  •  the  war 


Ch.  II.]  THE  CONEEDERATION.  183 

would  have  terminated  sooner,  and  would  have  cost 
vastly  less  both  of  blood  and  treasure,  if  the  govern- 
ment of  the  Union  had  possessed  the  power  of  direct 
or  indu'ect  taxation.-^  But  the  government  of  the 
Confederation  was  one  that  trusted  too  much  to  the 
patriotism  and  sense  of  honor  of  the  different  popu- 
lations of  the  different  States.  The  moral  feelmgs  of 
a  people  will  prompt  to  high  and  heroic  deeds ;  will 
mipel  them  with  irresistible  force  and  energy  to  the 
accomplishment  of  the  great  objects  of  liberty  and 
happiness ;  and  will  develop  in  mdividuals  the  high- 
est capacity  for  endurance  that  human  nature  can 
display.  They  did  so  ui  the  American  Revolution. 
The  annals  of  no  people,  strugghng  for  liberty,  ex- 
hibit more  of  the  vhtues  of  fortitude,  self-denial,  and 
an  ardent  love  of  freedom,  than  ours  exhibit,  espe- 
cially in  the  earlier  stages  of  the  contest.  But  any 
feelmgs  are  an  unsafe*  and  uncertam  reliance  for 
the  regular  and  punctual  operations  of  civil  govern- 
ment. The  fiscal  concerns  of  a  nation,  left  to  de- 
pend principally  upon  the  prevailing  sentiments  of 
justice,  honor,  and  gratitude,  —  upon  the  connection 
between  these  sentmients  and  that  passion  for  liberty 
which  animated  the  earlier  struggles  for  national 
independence,  —  are  exposed  to  great  hazards.  If 
an  appeal  to  the  feelings  of  a  people  constitutes  the 
prmcipal  ground  of  security  for  the  public  crechtor, 
other  feelings  may  intervene,  which  will  lead  to  a 

1  General  Washington's  letter  to  Letter  to  the  Governors  of  the 
Hamilton,  INIarch  31,  1783.  Writ-  States,  on  disbanding  the  army, 
ings,    VIII.    409,  410.      Circular      Ibid.  439,  451. 


184  THE  FEDERAL   CONSTITUTION.  [Book  II. 

denial  of  the  justice  of  the  claim ;  for  it  is  the  very 
nature  of  such  an  appeal  to  subniit  the  whole  ques- 
tion of  obligation  and  duty  to  popular  determination. 
That  government  alone  is  likely  to  discharge  the  just 
obligations  of  any  people,  which  possesses  both  the 
power  to  declare  what  those  obligations  are,  and  the 
power  to  levy  the  means  of  payment,  without  a  refer- 
ence of  either  pouit  to  popular  sentiment. 

The  history  of  the  Confederation  contauis  abun- 
dant proofs  of  the  soundness  of  this  position.  At 
the  close  of  the  war,  a  debt  of  more  than  forty  mil- 
lions of  dollars  was  due  from  the  United  States  to 
various  classes  of  creditors,  and  the  whole  of  it  had 
been  contracted  either  by  the  government  of  the  Con- 
federation, or  by  its  predecessors,  for  whose  contracts 
the  Confederation  was  expressly  bound,  by  the  Arti- 
cles, to  provide.  This  debt  could  not  be  discharged 
without  a  grant  of  internal  revenues  from  the  States, 
and  without  a  grant  of  the  power  to  collect  other 
revenues  from  the  external  trade  of  the  country. 
The  appeal  that  was  made  by  the  government  in 
order  to  obtain  these  grants  was  addressed  almost 
wholly  to  the  moral  sentiments  of  the  people  of  the 
different  States ;  the  time  had  scarcely  arrived,  al- 
though rapidly  approaching,  for  an  appeal  to  those 
interests  which  were  involved  in  the  surrender  to  the 
general  government  of  the  power  of  regidating  for- 
eign commerce;-^   and  consequently  the   arguments 

1  None  of  the  documents,  con-  by  Congress  in  1783,  discussed  tlie 
nected  with  the  Address  to  the  question  as  one  of  direct  interest 
People  of  the  United  States,  issued       and  advantage,  except  Hamilton' 


Ch.  II.]  THE   CONEEDERATION.  185 

addressed  to  the  sense  of  justice  and  the  feeling  of 
gratitude  were  answered'  by  discussions  of  the  pro- 
priety, justice,  and  reasonableness  of  some  of  the 
claims,  for  which  the  States  were  thus  called  upon  to 
provide,  as  existing  debts  of  the  country,  not  without 
the  hope,  entertained  in  some  quarters,  of  involving 
the  whole  in  confusion  and  final  rejection.^ 

The  design  of  the  framers  of  the  revenue  system 
of  1783  was  twofold;  first,  to  do  justice  to  the  credi- 
tors of  the  country,  by  procuring  adequate  power  to 
fund  the  public  debts ;  and  second,  to  strengthen  and 
consolidate  the  national  government,  by  means  of 
those  debts  and  of  the  various  interests  which  would 
be  combined  in  the  great  object  of  their  liquidation. 
They  foresaw,  on  the  approach  of  peace,  that  to 
leave  these  debts  to  be  provided  for  by  the  States 
individually  would  lead  to  a  separation  of  interests 
fatal  to  the  continuance  of  the  Union ;  but  that  to 
make  the  United  States  responsible  for  the  whole  of 
them  would  be  to  create  a  bond  of  union,  that  would 


answer  to  the  objections  of  Rhode  but  that,  even  if  it  had  thistenden- 
Island.      The   Address   itself  ap-  cy,  it  was  a  tendency  in  the  right 
pealed  entirely  to  considerations  of  direction,  because  it  would  lessen 
honor,    justice,    and    good    faith.  the   proportion    of  imports  to  ex- 
Hamilton's  paper,  however,  showed  ports,   and  incline  the  balance   in 
with  great  perspicacity,  that  the  pro-  favor   of   the   country.      But   the 
posed  impost  would  not  be  unfavor-  great  question  of  yielding  the  con- 
able  to  commerce,  but  the  contrary  ;  trol   of  foreign   commerce  to    the 
that  it  would  not  diminish  the  prof-  Union, /or  the  sake  of  uyiiformity  of 
its  of  the  merchant,  being  too  mod-  regulation,  was  not  touched  in  any 
erate  in  amount  to  discourage  the  of  these  papers.     The  time  for  it 
consumption    of   imported    goods,  had  not  arrived, 
and  therefore  that  it  w'ould  not  di-  ^  ggg   ^ote   at   the  end  of  tbi 
minish  the  extent  of  importations  ;  chapter. 
VOL.  I.                                 24 


186  TIIE  FEDERAL  CONSTITUTION.  (Book  U. 

be  effectual  and  operative,  after  the  external  pressure 
of  war,  which  had  hitherto  held  the  States  together, 
should  have  been  removed.  For  this  pui-pose,  they 
undoubtedly  availed  themselves  of  the  discontents  of 
the  army,  a  class  of  the  public  creditors  the  justice 
of  whose  claims  there  w^as  immediate  danger  in  deny- 
ing. There  is  no  reason  to  suppose  that  these  dis- 
contents were  promoted  by  any  one  concerned  in 
giving  direction  to  the  action  of  Congress.  But  be- 
fore the  crisis  had  been  reached  in  the  "  Newburgh 
Addresses,"  it  was  perceived  to  be  extremely  impor- 
tant to  prevent  the  army  from  turning  away  from 
the  general  government,  as  their  debtor,  to  look 
to  their  respective  States ;  and,  after  the  imminent 
hazard  of  that  moment  had  passed,  the  claims  of  the 
army  were  used,  and  used  most  rightfully,  to  impress 
upon  the  States  the  necessity  of  yielding  to  Congress 
the  powers  necessary  to  do  justice.-^ 

In  the  proposal  of  this  scheme  of  finance,  involving, 
as  it  did,  a  material  change  in  the  operation  of  the 
existmg  constitution  of  the  country,  there  w^as  great 
Avisdom ;  and  it  was  eminently  fortmiate  that  it  went 
forth  before  the  advent  of  peace,  to  be  considered  and 
acted  upon  by  the  States.  The  system  of  the  Con- 
federation had  utterly  failed  to  supply  the  means  of 
sustaining  the  public  credit  of  the  Union,  and  the 
consciousness  of  that  faihire  tended  to  produce  a  res- 
olution of  the  Union  into  its  component  elements, 
the  States.     Men  had  begun  to  abandon  the  hope  of 

1  See  note  on  page  194. 


Ch.  n.J  THE  CONEEDEKATION.  187 

pa}iiig  the  debts  of  the  country ;  or,  if  they  were  to 
be  paid  at  all,  they  had  begun  to  look  to  the  States, 
in  their  individual  capacities,  as  the  ultimate  debtors, 
to  whom  at  least  a  part  of  the  claims  was  to  be 
referred.  Had  the  coimtry  been  pennitted  to  pass 
from  a  state  of  war  to  a  state  of  peace,  without  the 
suggestion  and  proposal  of  a  definite  system  for  fund- 
inof  these  debts  on  continental  securities,  the  Union 
would  at  once  have  been  exhausted  of  all  vitality. 
The  Confederation,  left  to  discharge  the  fmictions 
which  belonged  to  it  in  peace,  without  the  power  of 
relieving  the  burdens  which  it  had  entailed  upon  the 
country  during  the  war,  w^ould  have  been  everpvhere 
regarded  as  a  useless  machuie,  the  purposes  of  which 
—  poorly  answered  in  the  period  of  its  greatest  activ- 
ity—  had  entirely  ceased  to  exist.  Congress  would 
have  been  altended  by  delegates  fi'om  few  of  the 
States,  if  attended  at  all;^  and  the  rapid  decay  of 
the  Union  would  have  been  marked  by  the  feeble, 

1  As    it  was,  the   approach   of  have  not  been  during  the  sitting  of 

peace  had  reduced  the  attendance  Congress  at  this  place  [Annapolis] 

upon  Congress  below  the  constitu-  more  than  seven  States  represent- 

tional  number  of  States  necessary  ed,  namely,  Massachusetts,  Rhode 

to  ratify  the  treaty,  when  it  was  Island,    Pennsylvania,     Delaware, 

received.     On  the  23d  of  Decern-  Maryland,    Virginia,    and    North 

ber,  1783,  a  resolve  was  passed,  Carolina,  and  most  of  those  by  only 

"  That  letters  be  immediately  de-  two  delegates ;  and  that  the  ratifi- 

spatched  to  the  executives  of  New  cation  of  the  definitive  treaty,  and 

Hampshire,      Connecticut,      New  several  other  matters,  of  great  na- 

York,  New   Jersey,  South   Caro-  tional   concern,    are  now    pending 

Una,  and  Georgia,  informing  them  before  Congress,  which  require  the 

that  the  safety,  honor,   and    good  utmost  despatch,  and  to  which  the 

faith  of  the  United  States  require  assent  of  at  least  nine  States  is  ne» 

the  immediate  attendance  of  their  cessary."     (Journals,  IX.  12.) 
delegates  in  Congress ;  that  there 


188  THE  FEDERAL  CONSTITUTION.  [Book  H 

spasmodic,  and  imsuccessfui  efforts  of  some  of  them 
to  discharge  so  much  of  the  general  burdens  as  could 
have  been  assigned  to  them  in  severalty;  the  open 
repudiation  of  others ;  and  the  final  confusion  and 
loss  of  the  whole  mass  of  the  debts,  in  universal 
bankruptcy,   poverty,  and  disgrace. 

But  the  comprehensive  scheme  of  1783,  although 
never  adopted,  saved  the  imperfect  Union  that  then 
existed  from  the  destruction  to  which  it  was  hasten- 
ing. It  saved  it  for  a  prolonged,  though  feeble  ex- 
istence, through  a  period  of  desperate  exhaustion. 
It  saved  it,  by  ascertaining  the  debts  of  the  countiy, 
fixing  their  national  character,  and  proposing  a  na- 
tional system  for  their  discharge.  It  directed  the 
attention  of  the  States  to  the  advantage  and  the 
necessity  of  giving  up  to  the  Union  some  part  of 
the  imposts  that  might  be  levied  on  foreign  com- 
modities, and  thus  led  the  way  to  that  grand  idea  of 
uniformity  of  regulation,  which  was  afterwards  de- 
veloped as  the  true  interest  of  communities,  which, 
from  their  geographical  and  moral  relations,  consti- 
tute in  fact  but  one  country. 

It  is  not  intended,  however,  in  assignmg  this  influ- 
ence to  the  revenue  system  proposed  in  1783,  to  sug- 
gest that  it  contained  the  germ  of  the  present  Con- 
stitution. It  was  an  essentially  different  system.  It 
proposed  the  enlargement  of  the  powers  of  Congress, 
as  they  existed  under  the  Confederation,  only  by  the 
grant  to  the  United  States  of  the  right  to  collect  cer- 
tain duties  on  foreign  importations,  for  the  limited 
period  of  twenty-five  years,  to  be  applied  to  the  dis- 


OH.  II.]  THE   CONFEDERATION.  189 

charge  of  the  debts  contracted  for  the  pui'poses  of  the 
war,  but  to  be  collected  by  officers  appomted  by  the 
States,  although  amenable  to  Congress  ;  and  the  le\y 
and  collection  by  the  States  of  certam  mtemal  taxes, 
during  the  same  limited  term,  for  the  purpose  of  rais- 
ing certain  proportionate  sums,  to  be  paid  over  to  the 
United  States,  for  the  same  object.  So  far,  therefore, 
as  this  system  suggested  any  new  powers,  there  is  a 
wide  difference  between  its  features  and  prmciples 
and  those  of  an  entire  and  irrevocable  surrender  to 
the  Union  of  the  whole  subject  of  taxuig  and  regu- 
lating foreign  commerce.  But  the  influence  of  this 
proposal  upon  the  countiy,  diu'ing  the  fom'  years 
wliich  followed,  is  to  be  measured  by  the  evident 
necessities  which  it  revealed,  and  by  the  means  to 
which  it  pomted  for  then*  relief;  —  means  which, 
though  never  applied,  and,  if  appHed,  would  have 
proved  inadequate,  still  showed,  through  the  period 
of  increasing  weakness  in  the  Union,  the  high  obli- 
gatio|is  which  rested  upon  the  country,  and  wliich 
could  be  discharged  only  by  the  preservation  of  the 
Union. 


190  THE  FEDEEAL  CONSTITUTION.  [Book  II 

NOTE  TO  PAGE   185. 

ON    THE    HALF-PAY    FOR    THE    OFFICERS    OF    THE    REVOLUTION. 

In  Connecticut,  the  opposition  to  the  plan  of  enabling  Congress  to  fund 
the  public  debts  arose  from  the  jealousy  with  which  the  provision  of  half- 
pay  for  the  officers  of  the  army  had  always  been  regarded  in  that  State. 
In  October,  1783,  Governor  Trumbull,  in  an  address  to  the  Assembly  de- 
clining a  reelection,  had  spoken  of  the  necessity  of  enlarging  the  powers 
of  Congress,  and  of  strengthening  the  arm  of  the  government.  A  com- 
mittee reported  an  answer  to  this  address,  which  contained  a  paragraph 
approving  of  the  principles  which  the  Governor  had  inculcated,  but  it 
was  stricken  out  in  the  lower  house.  Jonathan  Trumbull,  Jr.,  who  had 
been  one  of  Washington's  aids,  thus  wrote  to  him  concerning  the  rejec- 
tion of  this  paragraph  :  "It  was  rejected,  lest,  by  adopting  it,  they  should 
seem  to  convey  to  the  people  an  idea  of  their  concurring  with  the  political 
sentiments  contained  in  the  address ;  so  exceedingly  jealous  is  the  spirit 
of  this  State  at  present  respecting  the  powers  and  the  engagements  of 
Congress,  arising  principally  from  their  aversion  to  the  half-pay  and  com- 
mutation granted  to  the  army  ;  principally,  I  say,  arifing  from  this  cause. 
It  is  but  too  true,  that  some  few  are  wicked  enough  to  hope,  that,  by 
means  of  this  clamor,  they  may  be  able  to  rid  themselves  of  the  whole 
public  debt,  by  introducing  so  much  confusion  into  public  measures  as 
shall  eventually  produce  a  general  abolition  of  the  whole."  (Writings 
of  Washington,  IX.  5,  note.)  It  appears  from  the  Journals  of  Congress, 
that  in  November,  1783,  the  House  of  Representatives  of  Connecticut  sent 
some  remonstrance  to  Congress  respecting  the  resolution  which  had 
granted  half-pay  for  life  to  the  officers,  which  was  referred  to  a  com- 
mittee, to  be  answered.  In  the  report  of  this  committee  it  was  said,  that 
"the  resolution  of  Congress  referred  to  appears  by  the  yeas  and  nays  to 
have  been  passed  according  to  the  then  established  rules  of  that  body  in 
transacting  the  business  of  the  United  States ;  the  resolution  itself  had 
public  notoriety,  and  does  not  appear  to  have  been  formally  objected 
against  by  the  legislature  of  any  State  till  after  the  Confederation  was 
completely  adopted,  nor  till  after  the  close  of  the  war.'"  These  words 
were  stricken  out  from  the  report  by  a  vote  of  six  States  against  one, 
two  States  declining  to  vote.  The  journal  gives  no  further  account  of 
the  matter.     (Journals,  IX.  79.     March  12,  1784.) 

In  Massachusetts,  the  half-pay  had  always  been  equally  unpopular. 
The  legislature  of  that  State,  on  the  11th  of  July,  1783,  addressed  a  let- 


Ch.  II.]  THE   CONTEDERATION.  191 

ter  to  Congress,  to  assign,  as  a  reason  for  not  agreeing  to  the  impost 
duty,  the  grant  of  half-pay  to  the  officers.  The  tone  of  this  letter  does 
Uttle  credit  to  the  State. 

"  Commonwealth  of  Massachusetts. 

"Boston,  July  11,  1783. 
"Sir:  — 

"  The  Address  of  the  United  States  in  Congress  assembled  has  been 
received  by  the  legislature  of  the  Commonwealth  of  Massachusetts  ;  and, 
while  they  consider  themselves  as  bound  in  duty  to  give  Congress  the 
highest  assurance  that  no  measures  consistent  with  their  circumstances, 
and  the  constitution  of  this  government  and  the  Federal  Union,  shall  re- 
main unattempted  by  them  to  furnish  those  supplies  which  justice  de- 
mands, and  which  are  necessary  to  support  the  credit  and  honor  of  the 
United  States,  they  find  themselves  under  a  necessity  of  addressing  Con- 
gress in  regard  to  the  subject  of  the  half-pay  of  the  officers  of  the  army, 
and  the  proposed  commutation  thereof;  with  some  other  matters  of  a 
similar  nature,  which  produce  among  the  people  of  this  Commonwealth 
the  greatest  concern  and  uneasiness,  and  involve  the  legislature  thereof 
in  no  small  embarrassments.  The  legislature  have  not  been  unacquainted 
with  the  sufferings,  nor  are  they  forgetful  of  the  virtue  and  bravery,  of 
their  fellow-citizens  in  the  army ;  and  while  they  are  sensible  that  justice 
requires  they  should  be  fully  compensated  for  their  services  and  suffer- 
ings, at  the  same  time  it  is  most  sincerely  wished  that  they  may  return 
to  the  bosom  of  their  country,  under  such  circumstances  as  may  place 
them  in  the  most  agreeable  light  with  their  fellow-citizens.  Congress, 
in  the  year  1780,  resolved,  that  the  officers  of  the  army,  who  should  con- 
tinue therein  during  the  war,  should  be  entitled  to  half-pay  for  life  ;  and 
at  the  same  time  resolved,  that  all  such  as  should  retire  therefrom,  in 
consequence  of  the  new  arrangement  which  was  then  ordered  to  take 
place,  should  be  entitled  to  the  same  benefit;  a  commutation  of  which 
half-pay  has  since  been  proposed.  The  General  Court  are  sensible  that 
the  United  States  in  Congress  assembled  are,  by  the  Confederation,  vested 
with  a  discretionary  power  to  make  provision  for  the  support  and  pay- 
ment of  the  army,  and  such  civil  officers  as  may  be  necessary  for  manag- 
ing the  general  affairs  of  the  United  States  ;  but  in  making  such  provis- 
ion, due  regard  ever  ought  to  be  had  to  the  welfare  and  happiness  of 
the  people,  the  rules  of  equity,  and  the  spirit  and  general  design  of  the 
Confederation.  We  cannot,  on  this  occasion,  avoid  saying,  that,  with 
due  respect,  we  are  of  opinion  those  principles  were  not  duly  attended  to, 
in  the  grant  of  half-pay  to  the  officers  of  the  armv ;  that  being,  in  our 


192  THE  FEDEKAL  CONSTITUTION  [Book  II 

opinion,  a  grant  of  more  than  an  adequate  reward  for  their  services,  and 
inconsistent  vvitli  that  equality  which  ought  to  suhsist  among  citizens  of 
free  and  republican  States.     Such  a  measure  appears  to  be  calculated  to 
/aise  and  exalt  some  citizens  in  wealth  and  grandeur,  to  the  injury  and 
oppression  of  others,  even  if  the  inequality  which  will  happen  among  the 
officers  of  the  army,  who  have  performdB  from  one  to  eight  years'  ser- 
vice, should  not  be  taken  into  consideration.     The  observations  which 
have  been  made  with  regard  to  the  officers  of  the  army  will  in  general 
apply  to  the  civil  officers  appointed  by  Congress,  who,  in  our  opinion, 
have  been  allowed  much  larger  salaries  than  are  consistent  with  the  state 
of  our  finances,  the  rules  of  equity,  and  a  proper  regard  to  the  public 
good.     And,  indeed,  if  the  United  States  were  in  the  most  wealthy  and 
prosperous  circumstances,  it  is  conceived  that  economy  and  moderation, 
with  respect  to  grants  and  allowances,  in  opposition  to  the  measures 
which  have  been  adopted  by  monarchical  and  luxurious  courts,  would 
most  highly  conduce  to  our  reputation,  even  in  the  eyes  of  foreigners, 
and  would  cause  a  people,  who  have  been  contending  with  so  much  ardor 
and  expense  for  republican  constitutions  and  freedom,  which  cannot  be 
supported  without  frugality  and  virtue,  to  appear  with  dignity  and  con- 
sistency ;  and  at  the  same  time  would,  in  the  best  manner,  conduce  to 
the  public  happiness.     It  is  thought  to  be  essentially  necessary,  espe- 
cially at  the  present  time,  that  Congress  should  be  expressly  informed, 
that  such  measures  as  are  complained  of  are  extremely  opposite  and  irri 
tating  to  the  principles  and  feelings  which  the  people  of  some  Eastern 
States,  and  of  this  in  particular,  inherit  from  their  ancestry.     The  legis- 
lature cannot  without  horror  entertain  the  most  distant  idea  of  the  disso- 
lution of  the  Union  which  subsists  between  the  United  States,  and  the 
ruin  which  would  inevitably  ensue  thereon  ;  but  with  great  pain  they 
must  observe,  that  the  extraordinary  grants  and  allowances  which  Con 
gross  have  thought  proper  to  make  to  their   civil  and  military  officers 
have  produced  such  effects  in  this  Commonwealth  as  are  of  a  threatening 
aspect.     From  these  sources,  and  particularly  from  the  grant  of  half-pay 
to  the  officers  of  the  army,  and  the  proposed  commutation  thereof,  it  has 
arisen,  that  the  General  Court  has  not  been  able  hitherto  to  agree  in  grant- 
ing to  the  United  States  an  impost  duty,  agreeable  to  the  recommenda- 
tion of  Congress  ;  while  the  General  Assembly  at  the  same  time  have 
been  deeply  impressed  with  a  sense  of  the  necessity  of  speedily  adopting 
some  effectual  measures  for  supplying  the  continental  treasury,  for  the 
restoration  of  the  public  credit,  and  the  salvation  of  the  country  ;  —  and 
propose,  as  the  present  session  is  near  terminating,  again  to  take  the  sub- 
ject of  the  impost  duty  into  consideration  early  in  the  next.     From  these 


Oh.  II.]  THE   CONFEDERATION.  193 

observations,  you  may  easily  learn  the  difficult  and  critical  situation  the 
legislature  is  in,  and  they  rely  on  the  wisdom  of  Congress  to  adopt  and 
propose  some  measure  for  relief  in  this  extremity. 
"  In  the  name  and  by  order  of  the  General  Court, 

"  We  are  your  Excellency's  most  obedient  humble  servants, 

"  Samuel  Adams, 
President  of  the  Senate. 
"  Tristram  Dalton, 
Speaker  of  the  House  of  Representatives. 
"His  Excellency  the  President  of  Congress." 

This  letter  was  thought  worthy  an  answer,  and  accordingly  a  report 
upon  it  was  brought  in  by  Mr.  Madison,  and  adopted  in  Congress,  con- 
taining among  other  things  the  following :  — 

"  Your  committee  consider  the  measure  of  Congress  as  the  result  of  a 
deliberate  judgment,  framed  on  a  general  view  of  the  interests  of  the 
Union  at  large.  They  consider  it  to  be  a  truth,  that  no  State  in  this 
Confederacy  can  claim  (more  equitably  than  an  individual  in  a  society) 
to  derive  advantages  from  a  Union,  without  conforming  to  the  judgment 
of  a  constitutional  majority  of  those  who  compose  it ;  still,  however, 
they  conceive  it  will  be  found  no  less  true,  that,  if  a  State  every  way  so 
important  as  Massachusetts  should  withhold  her  solid  support  to  constitu- 
tional measures  of  the  Confederacy,  the  result  must  be  a  dissolution  of 
the  Union  ;  —  and  then  she  must  hold  herself  as  alone  responsible  for  the 
anarchy  and  domestic  confusion  that  may  succeed ,  and  for  exposing  all 
these  confederated  States  (who  at  the  commencement  of  the  late  war 
leagued  to  defend  her  violated  rights)  an  easy  prey  to  the  machinations 
of  their  enemies,  and  the  sport  of  European  politics  ;  and  therefore  they 
are  of  opinion,  that  Congress  should  still  confide  that  a  free,  enlightened, 
and  generous  people  will  never  hazard  consequences  so  perilous  and 
alarming,  and  in  all  circumstances  rely  on  the  wisdom,  temper,  and  vir- 
tue of  their  constituents,  which  (guided  by  an  all-wise  Providence)  have 
ever  interposed  to  avert  impending  evils  and  misfortunes.  Your  com- 
mittee beg  leave  further  to  observe,  that,  from  an  earnest  desire  to  give 
satisfaction  to  such  of  the  States  as  expressed  a  dislike  to  the  half-pay 
establishment,  a  sum  in  gross  was  proposed  by  Congress,  and  accepted 
by  the  officers,  as  an  equivalent  for  their  half-pay.  That  your  committee 
are  informed,  that  such  equivalent  was  ascertained  on  established  princi- 
ples which  are  acknowledged  to  be  just,  and  adopted  in  similar  cases; 
but  that  if  the  objections  against  the  commutation  were  ever  so  valid,  yet, 
as  it  is  not   now  under  the  arbitration  of  Congress,  but  an  act  finally 

VOL.  I.  25 


194  THE  FEDEEAL  CONSTITUTION.  [Book  II. 

adopted,  and  the  national  faith  pledged  to  carry  it  into  effect,  they  could 
not  be  taken  into  consideration.  With  regard  to  the  salaries  of  civil 
officers,  it  may  be  observed,  that  the  necessaries  of  life  have  been  very 
high  during  the  war :  hence  it  has  happened  that  even  the  salaries  com- 
plained of  have  not  been  found  sufficient  to  induce  persons  properly  quali- 
fied to  accept  of  many  important  offices,  and  the  public  business  is  left 
undone."    (Journals  of  Congress,  VIII.  379  -  385.     September  25, 1783.) 


NOTE   TO  PAGE   186. 

ON    THE    NEWBURGH    ADDRESSES. 

There  was  a  period  in  this  business,  when  the  officers  would  have 
accepted  from  Congress  a  recommendation  to  their  several  States  for  the 
payment  of  their  dues.  Their  committee,  consisting  of  General  McDou- 
gall,  Colonel  Brooks  of  Massachusetts,  and  Colonel  Ogden  of  New  Jer- 
sey, arrived  in  Philadelphia  about  the  1st  of  January.  In  their  memorial 
to  Congress,  they  abstained  from  designating  the  funds  from  which  they 
desired  satisfaction  of  their  demands,  because  their  great  object  was  to 
get  a  settlement  of  their  accounts  and  an  equivalent  for  the  half-pay  es- 
tablished. But  they  were,  in  fact,  at  one  time,  impressed  with  the  be- 
lief that  their  best,  and  indeed  their  only  security,  was  to  be  sought  for 
in  funds  to  be  provided  by  the  States,  under  the  recommendation  of  Con- 
gress. This  plan  would  have  involved  a  division  of  the  army  into  thir- 
teen different  parts,  leaving  the  claims  of  each  part  to  be  satisfied  by  its 
own  State  :  a  course  that  would  unquestionably  have  led  to  the  rejection 
of  their  demands  in  some  States,  and  probably  in  many.  To  prevent 
this,  there  is  little  doubt  that  the  influence  of  those  members  of  Congress 
who  wished  to  promote  their  interests,  and  to  identify  them  with  the  in- 
terests of  the  other  public  creditors,  was  used  ;  and  by  the  middle  of 
February  the  committee  of  the  officers  became  satisfied,  that  the  army 
must  unitedly  pursue  a  common  object,  insisting  on  the  grant  of  revenues 
to  the  general  government,  adequate  to  the  liquidation  of  all  the  public 
debts.  (Letter  of  Gouverneur  Morris  to  General  Greene,  February  15, 
1783.  Life,  by  Sparks,  I.  250.)  The  point,  however,  which  they  con- 
tinued to  urge,  was  the  commutation ;  and  upon  this  they  encountered 
great  obstacles.  The  committee  of  Congress  to  whom  their  memorial 
was  referred  went  into  a  critical  examination  of  the  principles  of  annuities, 


Ch.  II.]  THE   CONFEDERATION.  195 

in  order  to  determine  on  an  equivalent  for  the  half-pay  for  life,  promised 
by  the  resolve  of  1780.  The  result  was  a  report,  declaring  that  six 
years'  full  pay  was  the  proper  equivalent.  This  report  was  followed  by 
a  declaratory  resolve,  which  was  passed,  "that  the  troops  of  the  United 
States,  in  common  with  all  the  creditors  of  the  same,  have  an  undoubted 
right  to  expect  security  ;  and  that  Congress  will  make  every  effort  to  ob- 
tain, from  the  respective  States,  substantial  funds,  adequate  to  the  object 
of  funding  the  whole  debt  of  the  United  States,  and  will  enter  upon  an 
immediate  and  full  consideration  of  the  nature  of  such  funds,  and  the 
most  likely  mode  of  obtaining  them."  The  remainder  of  the  report, 
however,  was  referred  to  a  new  committee  of  five,  the  number  of  years 
being  considered  too  many.  The  second  committee  reported  five  years' 
whole  pay  as  an  equivalent,  after  another  calculation  of  annuities ;  but 
the  approval  of  nine  States  could  not  be  obtained.  A  desire  was  then 
expressed  by  some  of  the  members,  who  were  opposed  both  to  the  com- 
mutation and  the  half-pay,  to  have  more  time  for  consideration,  and  this 
was  granted. 

This  was  the  position  of  the  matter  on  the  8th  of  February,  when  the 
committee  of  the  officers  wrote  to  General  Knox  on  the  part  of  the  army. 
They  stated  that  "Massachusetts,  New  York,  Pennsylvania,  Virginia, 
North  and  South  Carolina  were  for  the  equivalent ;  New  Hampshire, 
Rhode  Island,  Connecticut,  and  Jersey  against  it.  There  is  some  pros- 
pect of  getting  one  more  of  these  States  to  vote  for  the  commutation. 
If  this  is  accomplished,  with  Maryland  and  Delaware,  the  question  will 
be  carried ;  whenever  it  is,  as  the  report  now  stands,  it  will  be  at  the 
election  of  the  line,  as  such,  to  accept  of  the  commutation  or  retain 
their  claim  to  the  half-pay,  Congress  being  determined,  that  no  altera- 
tion shall  take  place  in  the  emolument  held  out  to  the  army  but  by  their 
consent.  This  rendered  it  unnecessary  for  us  to  consult  the  army  on 
the  equivalent  for  half-pay.  The  zeal  of  a  great  number  of  members 
of  Congress  to  get  continental  funds,  while  a  few  wished  to  have  us  re- 
ferred to  the  States,  induced  us  to  conceal  what  funds  we  wished  or  ex- 
pected, lest  our  declaration  for  one  or  the  other  might  retard  a  settle- 
ment of  our  accounts,  or  a  determination  on  the  equivalent  for  half-pay. 
Indeed,  some  of  our  best  friends  in  Congress  declared,  however  desirous 
they  were  to  have  our  accounts  settled,  and  the  commutation  fixed,  as 
well  as  to  get  funds,  yet  they  would  oppose  referring  us  to  the  States  for 
a  settlement  and  security,  till  all  prospect  of  obtaining  continental  funds 
was  at  an  end.  Whether  this  is  near  or  not,  as  commutation  for  the 
half-pay  was  one  of  the  principal  objects  of  the  address,  the  obtaining  of 
that  is  necessary,  previous  to  our  particularizing  what  fund  will  be  mos* 


196  THE  FEDEEAL  CONSTITUTION.  [Book  II, 

agreeable  to  us :  this  must  be  determined  by  circumstances.  If  Con- 
gress get  funds,  we  shall  be  secured.  If  not,  the  equivalent  settled,  a 
principle  will  be  established,  which  will  be  more  acceptable  to  the  East- 
ern States  than  half-pay,  if  application  must  be  made  to  therti.  As  it  is 
not  likely  that  Congress  will  be  able  to  determine  soon  on  the  commuta- 
tion, (for  the  reasons  above  mentioned,)  it  is  judged  necessary  that  Colo 
nel  Brooks  return  to  the  army,  to  give  them  a  more  particular  detail  of 
our  prospects  than  can  be  done  in  the  compass  of  a  letter."  (Writings 
of  Washington,  VIII.  553,  554.) 

Two  classes  of  persons  existed  at  this  time  in  Congress,  of  very 
different  views ;  the  one  attached  to  State,  the  other  to  continental 
politics ;  the  one  strenuous  advocates  for  funding  the  public  debts 
upon  solid  securities,  the  other  opposed  to  this  plan,  and  finally  yield- 
ing to  it  only  in  consequence  of  the  clamors  of  the  army  and  the  other 
public  creditors.  The  advocates  for  continental  funds,  convinced  that 
nothing  could  be  done  for  the  public  credit  by  any  other  measures, 
determined  to  blend  the  interests  of  the  army  and  those  of  the  other 
creditors  in  their  scheme,  in  order  to  combine  all  the  motives  that 
could  operate  upon  different  descriptions  of  men  in  the  different  States. 
Washington,  who  naturally  regarded  the  interests  of  the  army  as  the  first 
object  in  point  of  importance,  and  who  had  not  given  his  attention  so 
much  to  the  general  financial  affairs  of  the  country,  seems  to  have  thought 
it  unadvisable  to  bring  the  claims  of  the  army  before  the  States,  in  con- 
nection with  the  other  public  debts.  On  the  4th  of  March,  he  wrote  to 
Hamilton  (then  in  Congress),  that  "  the  just  claims  of  the  army  ought 
and  it  is  to  be  Iioped  will,  have  their  weight  with  every  sensible  legisla- 
ture in  the  United  States,  if  Congress  point  to  their  demands,  and  show, 
if  the  case  is  so,  the  reasonableness  of  them,  and  the  impracticability  of 
complying  with  them  without  their  aid.  In  any  other  point  of  view,  it 
would  in  my  opinion  be  impolitic  to  introduce  the  army  on  the  tapis,  lest 
it  should  excite  jealousy  and  bring  on  its  concomitants.  The  States 
surely  cannot  be  so  devoid  of  common  sense,  common  honesty,  and  com- 
mon policy,  as  to  refuse  their  aid  on  a  full,  clear,  and  candid  representa- 
tion of  facts  from  Congress  ;  more  especially  if  these  should  be  enforced 
by  members  of  their  own  body,  who  might  demonstrate  what  the  inevita- 
ble consequences  of  failure  will  lead  to."     (Writings,  VIII.  390.) 

But  while  the  advocates  of  the  continental  system  were  maturing  their 
plans,  new  difiiculties  arose,  in  consequence  of  the  proceedings  of  the  offi- 
cers at  Newburgh,  and  of  the  jealousies  which  the  army  began  to  entertain. 
Among  the  resolutions  adopted  by  the  officers  was  one,  which  expressed 
heir  unshaken  confidence  in  the  justice  of  Congress  and  the  country,  and 


Ch.  n.]  THE  contedeeatiok  197 

their  conviction  that  Congress  would  not  disband  them,  until  their  ac- 
counts had  been  liquidated,  and  adequate  funds  established  for  their  pay- 
ment. But  Congress  had  no  constitutional  power,  under  the  Confedera- 
tion, to  demand  funds  of  the  States  ;  and  to  determine  that  the  army 
should  be  continued  in  service  until  the  States  granted  the  funds,  which 
it  was  intended  to  recommend,  would  be  to  determine  that  it  should  re- 
main a  standing  army  in  time  of  peace,  until  the  States  should  comply 
with  the  recommendation.  On  the  other  hand,  Congress  had  no  present 
means  of  paying  the  army,  if  they  were  to  disband  them.  This  dilem- 
ma rendered  it  negessary  to  evade  for  a  short  time  any  explicit  declara 
tion  of  the  purposes  of  Congress  as  to  disbanding  the  army ;  and  hence 
arose  a  jealousy,  on  the  part  of  the  army,  that  they  were  to  be  used  as 
mere  puppets  to  operate  upon  the  country,  in  favor  of  a  general  revenue 
system.  Washington  himself  communicated  the  existence  of  these  sus- 
picions to  Hamilton,  on  the  4th  of  April,  advising  that  the  army  should 
be  disbanded  as  soon  as  possible,  consulting  its  wishes  as  to  the  mode. 
He  also  intimated  that  the  Superintendent  of  the  Finances,  Robert  Mor- 
ris, was  suspected  to  be  at  the  bottom  of  the  scheme  of  keeping  the  army 
together,  for  the  purpose  of  aiding  the  adoption  of  the  revenue  system. 

Hamilton's  reply  explains  the  position  of  the  whole  matter,  and 
the  motives  and  purposes  of  those  with  whom  he  acted.  "  But  the 
question  was  not  merely  how  to  do  justice  to  the  creditors,  but  how  to 
restore  public  credit.  Taxation  in  this  country,  it  was  found,  could  not 
supply  a  sixth  part  of  the  public  necessities.  The  loans  in  Europe  were 
far  short  of  the  balance,  and  the  prospect  everyday  diminishing;  the 
court  of  France  telling  us,  in  plain  terms,  she  could  not  even  do  as  much 
as  she  had  done ;  individuals  in  Holland,  and  everywhere  else,  refusing 
to  part  with  their  money  on  the  precarious  tenure  of  the  mere  faith  of 
this  country,  without  any  pledge  for  the  payment  either  of  principal  or 
interest.  In  this  situation,  what  was  to  be  done?  It  was  essential  to 
our  cause  that  vigorous  efforts  should  be  made  to  restore  public  credit ; 
it  was  necessary  to  combine  all  the  motives  to  this  end,  that  could  oper- 
ate upon  different  descriptions  of  persons  in  the  different  States.  The 
necessity  and  discontents  of  the  army  presented  themselves  as  a  powerful 
engine.  But,  sir,  these  gentlemen  would  be  puzzled  to  support  their 
insinuations  by  a  single  flict.  It  was  indeed  proposed  to  appropriate  the 
intended  impost  on  trade  to  the  army  debt,  and,  what  was  extraordinary, 
by  gentlemen  who  had  expressed  their  dislike  to  the  principle  of  the 
fund.  I  acknowledge  I  was  one  that  opposed  this,  for  the  reasons  already 
assigned,  and  for  these  additional  ones :  that  was  the  fund  on  which  we 
most  counted  to  obtain  further  loans  in  Europe  ;   it  was  necessary  we 


198  THE  FEDERAL  CONSTITUTION.  [Book  1L 

should  have  a  fund  sufficient  to  pay  the  interest  of  what  had  been  bor- 
rowed and  what  was  to  be  borrowed.  The  truth  was,  these  people  in 
this  instance  wanted  to  play  off  the  army  against  the  funding  system. 
As  to  Mr.  Morris,  I  will  give  your  Excellency  a  true  explanation  of  his 
conduct.  He  had  been  for  some  time  pressing  Congress  to  endeavor  to 
obtain  funds,  and  had  found  a  great  backwardness  in  the  business.  He 
found  the  taxes  unproductive  in  the  different  States  ;  he  found  the  loans 
in  Europe  making  a  very  slow  progress ;  he  found  himself  pressed  on 
all  hands  for  supplies ;  he  found  himself,  in  short,  reduced  to  this  alter- 
native,—  either  of  making  engagements  which  he  could  not  fulfil,  or 
declaring  his  resignation  in  case  funds  were  not  established  by  a  given 
time.  Had  he  followed  the  first  course,  the  bubble  must  soon  have 
burst ;  he  must  have  sacrificed  his  credit  and  his  character,  and  public 
credit,  already  in  a  ruined  condition,  would  have  lost  its  last  support. 
He  wisely  judged  it  better  to  resign  ;  this  might  increase  the  embarrass- 
ments of  the  moment,  but  the  necessity  of  the  case,  it  was  to  be  hoped, 
would  produce  the  proper  measures,  and  he  might  then  resume  the  direc- 
tion of  the  machine  with  advantage  and  success.  He  also  had  some  hope 
that  his  resignation  would  prove  a  stimulus  to  Congress.  He  was,  how- 
ever, ill-advised  in  the  publication  of  his  letters  of  resignation.  This 
was  an  imprudent  step,  and  has  given  a  handle  to  his  personal  enemies, 
who,  by  playing  upon  the  passions  of  others,  have  drawn  some  well- 
meaning  men  into  the  cry  against  him.  But  Mr.  Morris  certainly  de- 
serves a  great  deal  from  his  country.  I  believe  no  man  in  this  country 
but  himself  could  have  kept  the  money  machine  going  during  the  period 
he  has  been  in  office.  From  every  thing  that  appears,  his  administration 
has  been  upright  as  well  as  able.  The  truth  is,  the  old  leaven  of  Deane 
and  Lee  is  at  this  day  working  against  Mr.  Morris.  He  happened  in  that 
dispute  to  have  been  on  the  side  of  Deane,  and  certain  men  can  never 

forgive  him The  matter,  with  respect  to  the  army,  which  has 

occasioned  most  altercation  in  Congress,  and  most  dissatisfaction  in  the 
army,  has  been  the  half-pay.  The  opinions  on  this  head  have  been  two : 
one  party  was  for  referring  the  several  lines  to  their  States,  to  make  such 
commutation  as  they  should  think  proper  ;  the  other,  for  making  the 
commutation  by  Congress,  and  funding  it  on  continental  security.  I  was 
of  this  last  opinion,  and  so  were  all  those  who  will  be  represented  as 
having  made  use  of  the  army  as  our  puppets.  Our  principal  reasons 
were  :  —  First,  by  referring  the  lines  to  their  respective  States,  those 
which  were  opposed  to  the  half-pay  would  have  taken  advantage  of  the 
officers'  necessities  to  make  the  commutation  short  of  an  equivalent. 
Secondly,  the  inequality  which  would  have  arisen  in  the  different  States 


Ch.  ii.]  the  coxfedeeation.  199 

when  the  officers  came  to  compare,  (as  has  happened  in  other  cases,) 
would  have  been  a  new  source  of  discontent.  Thirdly,  such  a  reference 
was  a  continuance  of  the  old,  wretched  State  system,  by  which  the  ties 
between  Congress  and  the  army  have  been  nearly  dissolved,  —  by  which 
the  resources  of  the  States  have  been  diverted  from  the  common  treasury 
and  wasted :  a  system  which  your  Excellency  has  often  justly  reprobated. 
I  have  gone  into  these  details  to  give  you  a  just  idea  of  the  parties  in 
Congress.  I  assure  you,  upon  my  honor,  sir,  I  have  given  you  a  candid 
statement  of  facts,  to  the  best  of  my  judgment.  The  men  against  whom 
the  suspicions  you  mention  must  be  directed,  are  in  general  the  most 
sensible,  the  most  liberal,  the  most  independent,  and  the  most  respectable 
characters  in  our  body,  as  well  as  the  most  unequivocal  friends  to  the 
army;  in  a  word,  they  are  the  men  who  think  continentally."  (Life  of 
Hamilton,  II.  162-164.) 

Among  the  officers  mentioned  in  the  text,  at  page  169,  as  seconding 
the  exertions  of  Washington  in  putting  down  the  Newburgh  disturban- 
ces, the  reader  will  have  observed  the  name  of  Putnam.  This  was 
Rufus  Putnam,  who  had  served  as  a  Colonel  through  the  war,  and  had 
been  made  a  Brigadier-General  about  three  months  before  this  occur- 
rence. General  Israel  Putnam  was  never  with  the  army  after  Decem- 
ber, 1779,  at  which  time  he  suffered  a  paralysis. 


CHAPTER  III. 

1781-1783. 

Opinions  and  Efforts  of  Washington   and   of  Hamilton.  —  Dc 
CLINE  of  the  Confederation 

The  proposal  of  the  revenue  system  went  forth 
to  the  country,  although  not  m  immediate  connec- 
tion, yet  nearly  at  the  same  time,  with  those  compre- 
hensive and  weighty  counsels  wliich  Washington  ad- 
dressed to  the  States,  when  the  great  object  for  which 
he  had  entered  the  service  of  his  country  had  been  ac- 
complished, and  he  was  about  to  return  to  a  private 
station.  His  relations  to  the  people  of  this  country 
had  been  peculiar.  He  had  been,  not  only  the  leader 
of  their  armies,  but,  in  a  great  degree,  their  civil  coun- 
sellor ;  for  although  he  had  rarely,  if  ever,  gone  out 
of  the  province  of  his  command  to  give  shape  or 
direction  to  constitutional  changes,  yet  the  whole  cu'- 
cumstances  of  that  command  had  constantly  placed 
him  in  contact  with  the  governments  of  the  States, 
as  well  as  with  the  Congress ;  and  he  had  often  been 
obliged  to  interpose  the  influence  of  his  oyni  char- 
acter and  opinions  with  all  of  them,  in  order  that  the 
civil  machine  might  not  wholly  cease  to  move.  At 
the   moment  when  he  was  about  to  lay  aside   the 


Cn.  m.l  THE  CONTEDERATION.  201 

sword,  he  saw  very  clearly  that  there  were  certam 
pruiciples  of  conduct  which  must  be  called  into  action 
in  the  States,  and  among  the  people  of  the  States,  for 
the  preservation  of  the  Union.  He,  and  he  alone, 
could  address  to  them  with  effect  the  requisite  words 
of  admonition,  and  point  out  the  course  of  safety  and 
success.  This  great  service,  the  last  act  of  liis  revo- 
lutionary official  life,  was  performed  with  all  the  truth 
and  Avisdom  of  his  character,  before  he  proceeded  to 
resign  into  the  hands  of  Congress  the  power  which 
he  had  held  so  long,  and  wliich  he  now  surrendered 
with  a  virtue,  a  dignity,  and  a  sincerity,  with  w^hich 
no  such  power  has  ever  been  laid  do'wn  by  any  of  the 
leaders  of  revolutions  whom  the  world  has  seen. 

His  object  in  this  Address  was  not  so  much  to 
urge  the  adoption  of  particular  measures,  as  to  incul- 
cate principles  which  he  believed  to  be  essential  to 
the  welfare  of  the  country.  So  clearly,  however,  did 
it  appear  to  him,  that  the  honor  and  mdependence  of 
the  country  were  involved  in  the  adoption  of  the  rev- 
enue system  Avhich  Congress  had  •recommended,  that 
he  did  not  refrain  from  urging  it  as  the  sole  means  by 
which  a  national  bankruptcy  could  be  averted,  before 
any  different  plan  could  be  proposed  and  adopted. 

But  how  far,  at  this  time,  any  other  or  further 
plans,  for  the  formation  of  a  better  constitution,  had 
been  formed,  or  how  far  any  one  perceived  both 
the  Adcious  principle  of  the  Confederation  and  the 
means  pf  substituting  for  it  another  and  more  effi- 
cient power,  we  can  judge  only  by  the  published 
writings  of  the  Hevolutionary  statesmen.     It  is  quite 

VOL.   I.  26 


202  THE  FEDERAL  CONSTITUTION.  [Book  II. 

certain  that  at  this  period  Washington  saw  the  de- 
fects of  the  Confederation,  as  he  had  seen  them 
clearly,  and  suffered  under  them,  fi-om  the  beginning. 
He  saw  that  m  the  powers  of  the  States,  which  far 
exceeded  those  of  the  Continental  Congress,  lay  the 
soui'ce  of  all  the  perplexities  which  he  had  experi- 
enced in  the  course  of  the  war,  and  of  almost  the 
whole  of  the  difficulties  and  distresses  of  the  army  ; 
and  that  to  form  a  new  constitution,  which  would 
give  consistency,  stability,  and  dignity  to  the  Union, 
was  the  great  problem  of  the  time.  He  saw,  also, 
that  the  honor  and  true  mterest  of  this  country  were 
mvolved  in  the  development  of  contmental  power ; 
that  local  and  State  politics  were  destmed  to  mterfere 
with  the  establishment  of  any  more  liberal  and  ex- 
tensive plan  of  government,  which  the  circumstances 
of  the  country  required,  as  they  had  perpetually 
weakened  the  bond  by  which  the  Union  had  thus 
far  been  held  together ;  and  that  such  local  mflu- 
ences  would  make  these  States  the  sport  of  Euro- 
pean policy.  He  pi'edicted,  moreover,  that  the  coun- 
try would  reach,  if  it  reached  at  all,  some  system  of 
sufficient  capabilities,  only  through  mistakes  and  dis- 
asters, and  through  an  experience  purchased  at  the 
price  of  further  difficulties  and  distress.  Such  were 
his  general  views,  at  the  close  of  the  war.-^ 

But  there  was  one  man  in  the  country  who  had 
looked  more  deeply  still   into   its  wants,  and  who 

1  Letter  to  Hamilton,  March  31,      Ibid.  411.     Address  to  the  States, 
1783.    Writings,  VIII.  409.    Let-      June  8,  1783.     Ibid.  439. 
ter   to   Lafayette,  April   5,    1783. 


Cn.  in.]  THE   COKFEDERATION.  203 

had  formed  in  his  enlarged  and  comprehensive  muid 
the  clearest  views  of  the  means  necessary  to  meet 
them,  even  before  the  Confederation  had  been  practi- 
cally tried.  A  reorganization  of  the  government  had 
engaged  the  attention  of  Hamilton,  as  early  as  1780 ; 
and,  with  his  characteristio-  penetration  and  power,  he 
saw  and  suggested  what  should  be  the  remedy. 

He  entertained  the  opinion,  at  this  time,  as  he  had 
always  entertained  it,  that  the  discretionary  powers 
originally  vested  in  Congress  for  the  safety  of  the 
States,  and  implied  in  the  circumstances  and  objects 
of  their  assembhng,  were  fiilly  competent  to  the 
public  exigencies.  But  their  practice,  from  the  time 
of  the  Declaration  of  Independence  through  all  the 
period  that  preceded  the  establishment  of  the  Con 
federation,  had  accustomed  the  country  to  doubts  of 
then-  original  authority,  and  had  at  last  amounted  to 
-a  surrender  of  the  ground  from  which  they  might 
have  exercised  it.  No  remedy,  therefore,  remained, 
applicable  to  the  circumstances,  and  capable  of  res- 
cuing the  affairs  of  the  country  from  their  deplorable 
situation,  but  to  vest  in  Congress,  expressly  and  by  a 
direct  grant,  the  powers  necessary  to  constitute  an 
efficient  government  and  a  solid,  coercive  union.  The 
project  then  before  the  country,  in  the  Articles  of 
Confederation,  had  been  designed  to  accomplish  what 
the  revolutionary  government  had  failed  to  do.  But 
it  was  manifestly  destined  to  fail  in  its  turn ;  for  it 
left  an  uncontrollable  sovereignty  in  the  States,  capa- 
ble of  defeating  the  beneficial  exercise  of  the  very 
powers  which  it  undertook  to  confer  upon  Congress. 


204  THE  FEDERAL   CONSTITUTION.  [Book  H. 

It  made  the  army,  not  a  unit,  formed  and  organized 
by  a  central  and  supreme  authority,  and  looking  up 
to  that  authority  alone,  but  a  collection  of  several 
armies,  raised  by  the  several  States.  It  gave  to  the 
State  legislatures  the  effective  power  of  the  purse,  by 
withholding  all  certain  revenues  from  Congress.  It 
proposed  to  introduce  no  method  and  energy  of  ad- 
ministration ;  and  without  an  executive,  it  left  every 
detail  of  government  to  be  managed  by  a  dehberative 
body,  whose  constitution  rendered  it  fit  for  none  but 
legislative  functions. 

Under  these  circumstances,  it  was  Hamilton's  ad- 
vice, before  the  Confederation  took  effect,  that  Con- 
gress should  plainly,  frankly,  and  unanimously  con- 
fess to  the  States  their  inability  to  carry  on  the  con- 
test with  Great  Britain,  without  more  ample  powers 
than  those  which  they  had  for  some  time  exercised, 
or  those  which  they  could  exercise  under  the  Confed- 
eration ;  and  that  a  convention  of  all  the  States  be 
immediately  assembled,  with  full  authority  to  agree 
upon  a  different  system.  He  suggested  that  a  com- 
plete sovei'eignty  should  be  vested  in  Congress,  ex- 
cept as  to  that  part  of  internal  police  which  relates 
to  the  rights  of  property  and  life  among  individuals, 
and  to  raising  money  by  internal  taxes,  which  he 
admitted  should  be  regulated  by  the  State  legisla- 
tures. But  in  all  that  relates  to  war,  peace,  trade, 
and  finance,  he  maintained  that  the  sovereignty  of 
Congress  should  be  complete ;  that  it  should  liave 
the  entire  management  of  foreign  affairs,  and  of 
raising   and   officering   armies    and   navies ;    that   it 


On.  m.] 


THE   CONFEDEEATION. 


205 


should  have  the  entire  regulation  of  trade,  determin- 
mg  with  what  countries  it  should  be  carried  on,  lay- 
ing prohibitions  and  duties,  and  granting  bounties 
and  premiums  ;  that  it  should  have  certam  perpetual 
revenues  of  an  internal  character,  in  specific  taxes ; 
that  it  should  be  authorized  to  institute  admiralty 
courts,  coin  money,  establish  banks,  appropriate 
funds,  and  make  alliances  offensive  and  defensive, 
and  treaties  of  commerce.  He  recommended  also 
that  Congress  should  immediately  organize  executive 
departments  of  foreign  affairs,  war,  marine,  finance, 
and  trade,  with  great  officers  of  state  at  the  head  of 
each  of  them.-' 


1  These  suggestions  were  made 
by  Hamilton,  in  a  letter  of  great 
ability,  written  in  1780,  while  he 
was  still  in  the  army,  to  James  Du- 
ane,  a  member  of  Congress  from 
New  York.  It  was  not  published 
until  it  appeared  in  his  Life,  I. 
284.  At  its  close,  he  says:  "I 
am  persuaded  a  solid  confederation, 
a  permanent  army,  a  reasonable 
prospect  of  subsisting  it,  would 
give  us  treble  consideration  in  Eu- 
rope, and  produce  a  peace  this  win- 
ter. If  a  convention  is  called,  the 
mijids  of  all  the  States  and  the  peo- 
ple ought  to  be  prepared  to  receive 
its  determinations  by  sensible  and 
popular  ivritings,  which  should 
conform  to  the  views  of  Congress. 
There  are  epochs  in  human  affairs 
when  novelty  is  useful.  If  a  gen- 
eral opinion  prevails  that  the  old 
way  is  bad,  whether  true  or  false, 
and  this  obstructs   or  relaxes   the 


operations  of  the  public  service,  a 
change  is  necessary,  if  it  be  but  for 
the  sake  of  change.  This  is  exact- 
ly the  case  now.  'T  is  an  univer- 
sal sentiment,  that  our  present  sys- 
tem is  a  bad  one,  and  that  things 
do  not  go  right  on  this  account. 
The  measure  of  a  convention  would 
revive  the  hopes  of  the  people,  and 
give  a  new  direction  to  their  pas- 
sions, which  may  be  improved  in 
carrying  points  of  substantial  util- 
ity. The  Eastern  States  have  al- 
ready pointed  out  this  mode  to  Con- 
gress :  they  ought  to  take  the  hint, 
and  anticipate  the  others."  What 
is  here  said  of  the  action  of  the 
Eastern  States  probably  refers,  not 
to  any  suggestion  of  a  convention 
to  revise  the  powers  of  the  general 
government,  but  to  a  convention  of 
committees  of  the  Eastern  States, 
which  first  assembled  at  Hartford 
and  afterwards  at  Boston,  in   No 


206  THE  FEDERAL  CONSTITUTION.  [Book  H. 

Hamilton's  enti-y  into  Congress  in  1782  marks  the 
commencement  of  his  public  efforts  to  develop  the 
idea  of  a  general  goveniment,  whose  organs  should 
act  directly,  and  without  the  intervention  of  any 
State  machinery.  He  first  publicly  propounded  this 
idea  in  the  paper  which  he  prepared,  as  chairman  of 
a  committee,  to  be  addressed  to  the  legislature  of 
Rhode  Island,  m  answer  to  the  objections  of  that 
State  to  the  revenue  system  proposed  in  1781.  One 
of  these  objections  was,  that  the  plan  proposed  to 
introduce  into  the  State  officers  unkno^vn  and  unac- 
countable to  the  State  itself,  and  therefore  that  it  was 
agamst  its  constitution.  From  the  prevalence  of  this 
notion,  we  may  see  how  difficult  it  was  to  create  the 
idea  of  a  national  sovereignty,  that  would  consist 
with  the  sovereignty  of  the  States,  and  would  work 
in  its  appropriate  sphere  harmoniously  with  the 
State  institutions,  because  directed  to  a  different  class 
of  objects.  The  nature  of  a  federal  constitution  was 
little  Lmderstood.  It  Avas  apparent  that  the  exercise 
of  its  powers  must  affect  the  internal  police  of  its 
component  members,  to  some  extent ;  but  it  was  not 
well  understood  that  political  sovereignty  is  capable 
of  partition,  according  to  the  character  of  its  subjects, 
so  that  powers  of  one  class  may  be  imparted  to  a 
federal,  and  powers  of  another  class  remain  in  a  State 

vember,  1779,  and  in  August,  1780,  sembled  in  Massachusetts  to  form 

for  regulating  the  prices  of  commod-  the  constitution  of  that  State.      1 

ilies.      Journals   of  Congress,    V.  am  aware  of  no  public  proposal,  as 

406  ;  VI.  271,  331,  392.     But  the  early  as  1780,  of  a  general  conven- 

writer  may  have  had  in  his  mind  tion  to  remodel  the  Confederacy, 
the  convention  which  had  just  as- 


Ch.  in.] 


THE   COISTFEDEEATION. 


207 


constitution,  without  destroying  the  sovereignty  of 
the  latter.  Hamilton  presented  this  view,  and  at  the 
same  time  pointed  out,  that,  unless  the  constitution 
of  a  State  expressly  prohibited  its  legislature  from 
grantmg  to  the  federal  government  new  power  to 
appoint  officers  for  a  special  purpose,  to  act  within 
the  State  itself,  it  was  competent  to  the  legislative 
authority  of  the  State  to  commmiicate  such  power, 
just  as  it  was  competent  to  it  originally  to  enter  into 
the  Confederation.-^ 


1  "  It  is  not  to  be  presumed," 
he  said,  "  that  the  constitution  of 
any  State  means  to  define  and  fix 
the  precise  numbers  and  descrip- 
tions of  all  officers  to  be  permitted 
m  the  State,  excluding  the  creation 
of  any  new  ones,  whatever  might 
be  the  necessity  derived  from  that 
variety  of  circumstances  incident  to 
all  political  institutions.  The  legis- 
lature must  always  have  a  discre- 
tionary power  of  appointing  offi- 
cers, not  expressly  known  to  the 
constitution,  and  this  power  will 
include  that  of  authorizing  the  fed- 
eral government  to  make  the  ap- 
pointments in  cases  where  the  gen- 
eral welfare  may  require  it".  The 
denial  of  this  would  prove  too 
much  ;  to  wit,  that  the  power  giv- 
en by  the  Confederation  to  Con- 
gress, to  appoint  all  officers  in  the 
post-office,  was  illegal  and  uncon- 
stitutional. The  doctrine  advanced 
by  Rhode  Island  would  perhaps 
prove  also  that  the  federal  govern- 
ment ought  to  have  the  appoint- 
ment of  no  internal  officers  what- 
ever    a  position  that  would  defeat 


all  the  provisions  of  the  Confedera 
tion,  and  all  the  purposes  of  the 
union.  The  truth  is,  that  no  fed- 
eral constitution  can  exist  without 
powers  that  in  their  exercise  effect 
the  internal  police  of  the  component 
members.  It  is  equally  true,  that 
no  government  can  exist  without  a 
right  to  appoint  officers  for  those 
purposes  which  proceed  from,  and 
concentre  in,  itself;  and  therefore 
the  Confederation  has  expressly  de- 
clared, that  Congress  shall  have 
authority  to  appoint  all  such  '  civil 
officers  as  may  be  necessary  for 
managing  the  general  affairs  of  the 
United  States  under  their  direc- 
tion.' All  that  can  be  required  is, 
that  the  federal  government  confine 
its  appointments  to  such  as  it  is 
empowered  to  make  by  the  original 
act  of  union,  or  by  the  subsequent 
consent  of  the  parties  ;  unless  there 
should  be  express  words  of  exclu- 
sion in  the  constitution  of  a  State, 
there  can  be  no  reason  to  doubt 
that  it  is  within  the  compass  of 
legislative  discretion  to  communi- 
cate that  authority.     The  propriety 


208 


TIIE  FEDEEAL  CONSTITUTION. 


[Book  11. 


In  the  same  paper,  also,  he  urged  the  necessity  of 
vesting  the  appointment  of  the  collectors  of  the  pro- 
posed revenue  in  the  general  government,  because  it 
was  designed  as  a  security  to  creditors,  and  must 
therefore  be  general  m  its  prmciple  and  ^  dependent 
on  a  single  will,  and  not  on  thhteen  different  author- 
ities. This  was  the  earliest  suggestion  of  the  princi- 
ple, that,  in  exercising  its  powers,  the  federal  govern 
ment  ought  to  act  directly,  through  agents  of  its 
own  appomtment,  and  thus  be  mdependent  of  State 
neffliffence  or  control.  AVlien  the  debate  came  on 
ui  January,  1783,  upon  the  new  project  of  a  revenue 
system,  he  again  urged  the  necessity  of  strengthen- 
ing the  federal  government,  through  the  influence  of 


of  doing  it  upon  the  present  occa- 
sion, is  founded  on  substantial  rea- 
sons. The  measure  proposed  is  a 
measure  of  necessity.  Repeated 
experiments  have  shown,  that  the 
revenue  to  be  raised  within  these 
States  is  altogether  inadequate  to 
the  public  wants.  The  deficiency 
can  only  be  supplied  by  loans.  Our 
applications  to  the  foreign  powers 
on  whose  friendship  we  depend, 
have  had  a  success  far  short  of  our 
necessities.  The  next  resource  is 
to  borrow  from  individuals.  These 
will  neither  be  actuated  by  gener- 
osity nor  reasons  of  state.  'Tis 
to  their  interest  alone  we  must 
appeal.  To  conciliate  this,  we 
must  not  only  stipulate  a  proper 
compensation  for  what  they  lend, 
but  we  must  give  security  for  the 
performance.  We  must  pledge  an 
nscertained   fund,  simple  and   pro- 


ductive in  its  nature,  general  in 
its  principle,  and  at  the  disposal  of 
a  single  will.  There  can  be  little 
confidence  in  a  security  under  the 
constant  revisal  of  thirteen  different 
deliberatives.  It  must,  once  for  all, 
be  defined  and  established  on  the 
faith  of  the  States,  solemnly  pledged 
to  each  other,  and  not  revocable  by 
any  without  a  breach  of  the  gen- 
eral compact.  'T  is  by  such  expe- 
dients that  nations  whose  resources 
are  understood,  whose  reputations 
and  governments  are  erected  on  the 
foundation  of  ages,  are  enabled  to 
obtain  a  solid  and  extensive  credit. 
Would  it  be  reasonable  in  us  to 
hope  for  more  easy  terms,  who  have 
so  recently  assumed  our  ranic  among 
the  nations?  Is  it  not  to  be  ex- 
pected, that  individuals  will  be  cau 
tious  in  l(5ndin2:  tneir  money  to  a 
people   in   our   circumstances,  and 


Ch.  m.| 


THE   CONEEDERATION. 


209 


officers  deriving  their  appointments  directly  firom  Con- 
gress ;  —  a  suggestion  that  was  received  at  the  mo- 
ment with  pleasure  by  the  opponents  of  the  scheme, 
because  it  seemed  to  disclose  a  motive  calculated 
to  touch  the  jealousy  rather  than  to  propitiate  the 
favor  of  the  States.  But  the  temporary  expedients 
of  the  moment  always  pass  away.  The  great  ideas 
of  a  statesman  like  Hamilton,  earnestly  bent  on  the 
discovery  and  inculcation  of  truth,  do  not  ]3ass  away. 
Wiser  than  those  by  whom  he  was  surrounded, 
with  a  deeper  knowledge  of  the  science  of  govern- 
ment and  the  wants  of  the  country  than  all  of  them, 
and  constantly  enunciating  principles  which  extend- 
ed far  beyond  the  temporizing  policy  of  the  hour, 


that  they  will  at  least  require  the 
best  security  we  can  give  ?  We 
have  an  enemy  vigilant,  intriguing, 
well  acquainted  with  our  defects 
and  embarrassments.  We  may  ex- 
pect that  he  will  make  every  effort 
to  instil  diffidences  into  individuals, 
and  in  the  present  posture  of  our 
internal  affairs  he  will  have  too 
plausible  ground  on  which  to  tread. 
Our  necessities  have  obliged  us  to 
embrace  measures,  wnth  respect  to 
our  public  credit,  calculated  to  in- 
spire distrust.  The  prepossessions 
on  this  article  must  naturally  be 
against  us,  and  it  is  therefore  indis- 
pensable we  should  endeavor  to  re- 
move them,  by  such  means  as  will 
be  the  most  obvious  and  striking. 
It  was  with  these  views  Congress 
determined  on  a  general  fund  ;  and 
the  one  they  have  recommended 
must,  upon  a  thorough  examina- 
voL.  I.  27 


tion,  appear  to  have  fewer  incon- 
veniences than  any  other.  It  has 
been  remarked  as  an  essential  part 
of  the  plan,  that  the  fund  should 
depend  on  a  single  will.  This  will 
not  be  the  case,  unless  the  collec- 
tion, as  well  as  the  appropriation, 
is  under  the  control  of  the  United 
States  ;  for  it  is  evident,  that,  after 
the  duty  is  agreed  upon,  it  may,  in 
a  great  measure,  be  defeated  by  an 
ineffectual  mode  of  levying  it.  The 
United  States  have  a  common  in- 
terest in  a  uniform  and  equally  en- 
ergetic collection  ;  and  not  only  pol- 
icy, but  justice  to  all  the  parts  of 
the  Union,  designates  the  utility 
of  lodging  the  power  of  making  it 
where  the  interest  is  common. 
Without  this,  it  might  in  reality 
operate  as  a  very  unequal  tax." 
Journals  of  Congress,  VIII.  153, 


210  THE  PEDEEAL  CONSTITUTION.  [Book  IL 

the  smiles  of  his  opponents  only  prove  to  posterity' 
how  far  he  was  in  advance  of  them.^ 

The  efforts  of  Hamilton  to  effect  a  change  in  the 
rule  of  the  Confederation,  as  to  the  ratio  of  contribu- 
tion by  the  States  to  the  treasury  of  the  Union,  also 
evince  both  the  defects  of  the  existing  government 
and  the  foresight  with  which  he  would  have  obviated 
them,  if  he  could  have  been  sustained.  The  rule  of 
the  Confederation  required  that  the  general  treasury 
should  be  supplied  by  the  several  States  in  propor- 
tion to  the  value  of  all  lands  within  each  State, 
granted  or  surveyed,  with  the  buildings  and  improve- 
ments thereon,  to  be  estimated  according  to  such 
mode  as  Congress  should  from  time  to  time  direct 
and  appoint;  the  taxes  for  pacing  such  proportion 
to  be  laid  and  levied  by  the  State  legislatures,  within 
the  time  fixed  by  Congress.  But  Congress  had  never 
appointed  any  mode  of  ascertaining  the  valuation  of 
lands  within  the  States.  The  first  requisition  called 
for  after  the  Confederation  took  effect  was  appor 

1  He  said,  as  an  additional  rea-  This  influence  was  the  very  source 

son  for  the  revenue  being-  collected  of  jealousy   which    rendered    the 

by  officers  under  the  appointment  States  averse  to  a  revenue  under 

of  Congress,  that,  "  as  the  energy  collection,   as  well  as  appropria- 

of  the  federal  government  was  evi-  tion,  of  Congress.     All  the  mem- 

dently  short  of  the  degree  necessary  bers  of  Congress  who  concurred 

for  pervading  and  uniting  the  States,  in  any  degree,  with  the  States  in 

it  was  expedient  to  introduce  the  this  jealousy,  smiled   at   the   dis- 

influence  of  officers  deriving  their  closure.    Mr.  Bland,  and  still  more 

emoluments  from,  and  consequently  Mr.  Lee,  who  were  of  this  number, 

interested  in  supporting  the  power  took   notice,  in   private   conversa- 

of   Congress."      Upon    this    Mr.  tion,  that   Mr.   Hamilton    had   let 

Madison  observes  :  "This  remark  out  the  secret. "     Elliot's  Debates, 

was   imprudent,   and   injurious  to  I.  35. 
the  cause  it  was  intended  to  serve. 


Ch.  III.]  THE  CONFEDEEATION.  211 

tioned  among  the  several  States  without  any  valua- 
tion,—  provision  being  made  by  which  each  State 
was  to  receive  interest  on  its  payments,  as  far  as  they 
exceeded  what  might  afterwards  be  ascertained  to  be 
its  just  proportion,  when  the  valuation  should  have 
been  made.^  At  the  outset,  therefore,  a  practical 
inequality  was  established,  which  gave  rise  to  com- 
plaints and  jealousies  between  the  States,  and  in- 
creased the  disposition  to  withhold  compliance  with 
the  requisitions.  The  dangerous  crisis  m  the  inter- 
nal affairs  of  the  country  which  attended  the  ap- 
proach of  peace,  had  arrived  in  the  winter  and  spring 
of  1783,  and  nothing  had  ever  been  done  to  carry 
out  the  rule  of  the  Confederation,  by  fixing  upon  a 
mode  of  valuation.  When  the  discussion  of  the  new 
measures  for  sustaming  the  public  credit  came  on, 
three  coiu'ses  presented  themselves,  with  regard  to 
this  part  of  the  subject ;  —  either,  first,  to  change  the 
principle  of  the  Confederation  entirely ;  or,  secondly, 
to  carry  it  out  by  fixing  a  mode  of  valuation,  at  once; 
or,  thkdly,  to  postpone  the  attempt  to  carry  it  out, 
until  a  better  mode  could  be  devised  than  the  exist- 
ing state  of  the  country  then  permitted. 

Hamilton's  preference  was  for  the  first  of  these 
courses,  as  the  one  that  admitted  of  the  application 
of  those  prmciples  of  government  which  he  was  en- 
deavoring to  introduce  into  the  federal  systefti ;  for  he 
saw  that  in  the  theory  of  the  Confederation  there 
was  an  mherent  inequality,  which  would  constantly 

1  March  18  and  23,  1781.     Journals,  VII.  56,  67. 


212  THE  FEDERAL  CONSTITUTION  [Book  II. 

increase  in  practice,  and  which  must  either  be  re- 
moved, or  destroy  the  Union.  He  maintained,  that, 
where  there  are  considerable  differences  in  the  rela- 
tive wealth  of  different  communities,  the  propor- 
tion of  those  differences  can  never  be  ascertained 
by  any  common  measure;  that  the  actual  wealth 
of  a  country,  or  its  ability  to  pay  taxes,  depends 
on  an  endless  variety  of  circumstances,  physical  and 
moral,  and  cannot  be  measured  by  any  one  general 
representative,  as  land,  or  numbers;  and  therefore 
that  the  assumption  of  such  a  general  represent- 
ative, by  whatever  mode  its  local  value  might  be 
ascertained,  would  work  inevitable  inequality.  In 
his  view,  the  only  possible  way  of  making  the  States 
contribute  to  the  general  treasury  in  an  equal  pro- 
portion to  their  means,  was  by  general  taxes  imposed 
under  continental  authority;  and  it  is  a  striking  proof 
of  the  comprehensive  sagacity  with  which  he  looked 
forward,  that,  while  he  admitted  that  this  mode  would, 
for  a  time,  produce  material  inequalities,  he  foresaw 
that  balancing  of  interests  which  would  arise  in  a 
continental  legislation,  and  would  relieve  the  hard- 
ships of  one  tax  in  a  particular  State  by  the  lighter 
pressure  of  another  bearing  with  proportional  weight 
in  some  other  part  of  the  Confederacy.^ 

Accordmgly,  after  an  attempt  to  postpone  the  con- 
sideratioil  of  a  mode  of  carrying  out  the  Confedera- 
tion, he  made  an  effort  to  have  its  principle  changed, 
by  substituting  specific  taxes  on  land  and  houses,  to 

1  Life  of  Hamilton,  II.  50-57. 


Ca  m.j 


THE   CONFEDERATION. 


213 


be  collected  and  appropriated,  as  well  as  tne  duties, 
•under  the  authority  of  the  United  States,  by  officers 
to  be  nominated  by  Congress,  and  approved  by  the 
State  in  which  they  were  to  exercise  their  functions, 
but  accountable  to  and  removable  by  Congress.-' 
These  ideas,  however,  as  he  himself  saw,  were  not 
agreeable  to  the  spirit  of  the  times,  and  his  plan  was 
rejected.  After  many  fruitless  projects  had  been 
suggested  and  discussed,  for  making  the  valuation 
required  by  the  Confederation,  —  some  of  them  pro- 
posing that  it  should  be  done  by  commissioners  ap- 
pointed by  the  United  States,  and  some  by  commis- 
sioner's appointed  by  the  States, — it  was  determined  to 
propose  no  other  change  in  the  prmciple  of  making 
requisitions  on  the  States,  than  to  substitute  popula- 
tion in  the  place  of  land,  as  the  rule  of  proportion.^ 


1  March  20,  1783.  Journals, 
VIII.  157-159. 

2  The  census  was  to  be  of  "  the 
whole  number  of  white  and  other 
free  citizens  and  inhabitants,  of 
every  age,  sex,  and  condition,  in- 
cluding those  bound  to  servitude  for 
a  term  of  years,  and  three  fifths  of 
all  other  persons  not  comprehended 
in  the  foregoing  description,  except 
Indians,  not  paying  taxes,  in  each 
State  ;  which  number  shall  be  tri- 
ennially  taken  and  transmitted  to 
the  United  States  in  Congress  as- 
sembled, in  such  mode  as  they  shall 
direct  and  appoint."  When  the 
Articles  of  Confederation  were 
framed  and  adopted  in  Congress, 
a  valuation  of  land  as  the  rule  of 
proportion  was  adopted  instead  of 


numbers  of  inhabitants,  in  conse- 
quence of  the  impossibility  of  com- 
promising the  different  ideas  of  the 
Eastern  and  Southern  States  as  to 
the  rate  at  which  slaves  should  be 
counted;  the  Eastern  States  of  course 
wishing  to  have  them  counted  in  a 
near  ratio  to  the  whites,  and  the 
Southern  States  wishing  to  dimin- 
ish that  ratio.  Numbers  would 
have  been  preferred  by  the  South- 
ern States  to  land,  if  half  their 
slaves  only  could  have  been  taken  ; 
but  the  Eastern  States  were  op- 
posed to  this  estimate.  (Elliot's 
Debates,  V.  79.)  In  1783,  when 
it  was  proposed  to  change  the  rule 
of  proportion  from  land  to  numbers, 
the  first  compromise  suggested  (by 
]\Ir.  Wolcntt  of  Connecticut)  was 


214  THE  FEDERAL  CONSTITUTION.  [Book  U. 

Equally  extensive  and  important  were  his  views 
on  the  subject  of  a  peace  establishment,  for  which 
he  saw  the  necessity  of  providing,  as  the  time  ap- 
proached when  the  Confederation  would  necessarily 
be  tested  as  a  government  for  the  purposes  of  peace. 
To  adapt  a  constitution,  whose  principal  powers  were 
origmally  designed  to  be  exercised  in  a  state  of  war, 
to  a  state  of  peace,  for  which  it  possessed  but  few 
powers,  and  those  not  clearly  defined,  was  a  problem 
in  the  science  of  government  of  a  novel  character. 
It  might  prove  to  be  an  impossible  task ;  for  on 
applying  the  constitutional  provisions  to  the  real 
wants  and  necessities  of  the  country,  it  might  turn 
out  that  the  Confederation  was  in  some  respects  des- 
titute of  the  capacity  to  provide  for  them ;  and  in 
undertaking  to  carry  out  its  actual  and  sufficient 
powers,  which  had  never  hitherto  been  exercised, 
opposition  might  spring  up,  from  State  jealousy  and 
local  policy,  which,  in  the  real  weakness  of  the  fed- 
eral government,  would  be  as  effectual  a  barrier  as 
the  want  of  constitutional  authority.  Still  the  effort 
was  to  be  made ;  and  Hamilton  approached  the  sub- 
ject with  all  the  sagacity  and  statesmanship  for  which 
he  was  so  distinguished. 

He  saw  that  the  Confederation  contained  pro'vis- 
ions  which  looked  to  the  continuance  of  the  Union 
after  the  war  had  terminated,  and  that  these  pro- 

to  include  only  such  slaves  as  were  proportion  by  ages,  it  would  be  best 

between   the  ages  of  sixteen    and  to  fix  it  in  absolute  numbers,  and 

sixty  ;   this  was   found  to  be  im-  the  rate  of  three  fifths  was  agreed 

practicable;  and  it  was  agreed  on  upon.     (Ibid.  81,82.) 
all  sides,  that,  instead  of  fixing  the 


Ch.  m.]  THE  CONFEDERATION.  215 

visions  required  practical  application,  through  a  ma- 
chinery which  had  never  been  even  firamed.  The  Ar- 
ticles of  Confederation  ^'ested  in  Congress  the  exclusive 
management  of  foreign  relations ;  but  the  department 
of  foreign  affairs  had  never  been  properly  organized. 
They  also  gave  to  Congress  the  exclusive  regulation 
of  trade  and  intercourse  with  the  Indian  nations ; 
but  no  department  of  Indian  affairs  had  been  estab- 
Hshed  with  properly  defined  powers  and  duties. 
Nothing  had  been  done  to  carry  out  the  pro^dsion 
for  fixing  the  standard  of  weights  and  measures 
throughout  the  United  States,  or  to  regulate  the 
alloy  and  value  of  coin.  Above  all,  the  great  ques- 
tion of  means,  military  and  naval,  for  the  external 
and  internal  defence  of  the  country  during  peace,  for 
the  preservation  of  tranquillity,  the  protection  of  com- 
merce, the  fulfilment  of  treaty  stipulations,  and  the 
maintenance  of  the  authority  of  the  United  States, 
had  not  been  so  much  as  touched.  To  regulate  these 
important  subjects  was  the  design  of  a  committee,  at 
the  head  of  which  Hamilton  was  placed;  and  his 
earliest  attention  was  directed  to  the  most  serious 
and  difficult  of  them,  —  the  provision  for  a  peace 
establishment  of  military  and  naval  forces.-^ 

The  question  whether  the  United  States  could 
constitutionally  maintain  an  army  and  navj^,  in  time 
of  peace,  was,  under  the  Articles  of  Coirfederation, 
not  free  from  difficulty ;  but  it  became  of  imminent 
practical  importance,  under  the  treaty  of  peace.    That 

1  Life  of  Hamilton,  11.  204-212. 


216  THE  FEDERAL  COKSTITUTION.  [Book  II, 

treaty  provided  for  an  immediate  withdrawal  of  the 
British  forces  from  all  posts  and  fortifications  ^vithin 
the  United  States  ;  and  it  became  at  once  an  impor- 
tant question,  whether  these  posts  and  fortifications 
—  especially  those  withm  certain  districts,  the  juris- 
diction and  property  of  which  had  not  been  constitu- 
tionally ascertained  —  should  be  garrisoned  by  troops 
of  the  United  States,  or  of  the  States  within  which 
they  were  situated.  There  was  also  territory  apper- 
taining to  the  United  States,  not  within  the  original 
claim  of  the  United  States.  The  whole  of  the  West- 
em  frontier  required  defence.  The  navigation  of  the 
Mississippi  and  the  lakes,  and  the  rights  of  the  fish- 
eries and  of  foreign  commerce,  all  belonging  to  the 
United  States,  and  depending  on  the  laws  of  nations 
and  treaty  stipulations,  demanded  the  joint  protec- 
tion of  the  Union,  and  could  not  with  propriety  be 
left  to  the  separate  establishments  of  the  States. 

But  the  Articles  of  Confederation  contained  no 
express  provision  for  the  establishment  and  mainte- 
nance of  any  military  and  naval  forces  during  peace. 
They  empowered  the  United  States,  generally,  (and 
without  mention  of  peace  or  war,)  to  build  and  equip 
a  na\y,  and  to  agree  upon  the  number  of  land  forces 
to  be  raised,  and  to  call  upon  the  States  to  furnish 
their  quotas.  But  they  also  declared  that  no  vessels 
of  war  should  be  kept  up  by  any  State  in  time  of 
peace,  except  such  number  only  as  should  be  deemed 
necessary  by  Congress  for  the  defence  of  such  State 
or  its  trade ;  and  that  no  body  of  forces  should  be 
kept  up  by  any  State  in  time  of  peace,  except  such 


Ch.  III.]  THE  CONFEDERATION.  217 

number  only  as  Congress  should  deem  requisite  to 
garrison  the  posts  necessary  for  the  defence  of  such 
State.  This  provision  might  be  construed  to  imply, 
that,  m  time  of  peace,  the  general  defence  was  to  be 
provided  for  by  the  forces  of  each  State,  and,  in  time 
of  war,  by  those  of  the  Union.  But  it  was  the  opin- 
ion of  Hamilton,  that  the  restrictions  on  the  powers 
of  the  States,  with  regard  to  maintammg  forces  dur- 
ing peace,  could  not  with  propriety  be  said  to  contain 
any  directions  to  the  United  States,  or  to  contravene 
the  positive  power  vested  in  the  latter  to  raise  both 
sea  and  land  forces,  "without  mention  of  peace  or  war. 
He  strengthened  this  view  by  the  capital  uiconven- 
ience  of  the  contrary  construction,  and  by  the  mani- 
fest necessities  of  the  country,  which  could  only  be 
provided  for  by  the  ^Dower  of  the  Union.  If  the 
United  States  could  have  neither  army  nor  navy, 
untd.  war  had  been  declared,  they  would  be  obliged 
to  begin  to  create  both  at  the  very  moment  when 
both  were  needed  in  actual  hostilities;  and,  if  the 
States  were  to  be  intrusted  with  the  defence  of  the 
country  in  tune  of  peace,  that  defence  would  be  left 
to  thirteen  diiFercnt  armies  and  navies,  under  the 
direction  of  as  many  different  governments.^ 

He  contemplated,  therefore,  the  formation  of  a 
peace  establishment,  to  consist  of  certain  corps  of  in- 
fantry, artillery,  cavalry,  engineers,  and  dragoons;^  a 


'  Ibid.  cers,  and  that  the  men  should  be 

2  He   proposed  that  the   States      enlisted    under    continental    direc- 

should    transfer    to   Congress   the      tion. 

right  to  appoint  the  regimental  offi- 
voL.   I.  28 


218 


THE  FEDERAL   CONSTITUTION. 


[Book  II. 


general  survey,  preparatory  to  the  adoption  of  a  gen 
eral  system  of  land  fortifications ;  the  establishment 
of  arsenals  and  magazines,  and  the  erection  of  foun- 
deries  and  manufactories  of  arms.  He  advised  the 
establishment  of  ports  and  maritime  fortifications,  and 
the  formation  and  construction  of  a  navy ;  and  his 
report  embraced  also  a  plan  for  classing  and  disci- 
pluiing  the  militia. 


1  That  the  subject  of  a  peace  es- 
tablishment originated  with  Ham- 
ilton is  certain,  from  the  fact  that 
early  in  April,  soon  after  the  ap- 
pointment of  the  committee,  he 
wrote  to  General  Washington, 
wishing  to  know  his  sentiments  at 
large  on  such  institutions  of  every 
kind  for  the  interior  defence  of  the 
States  as  might  be  best  adapted  to 
their  circumstances.  (Writings  of 
Washington,  VIII.  417.)  Wash- 
ington wrote  to  all  the  principal 
officers  of  the  army  then  in  camp, 
for  their  views,  and  from  the  me- 
moirs which  they  presented  to  him 
an  important  document  was  com- 
piled, which  was  forwarded  by  him 
to  the  committee  of  Congress.  In 
one  of  these  memoirs  Colonel  Pick- 
ering suggested  the  establishment 
of  a  military  academy  at  West 
Point.  "  If  any  thing,"  he  said, 
"  like  a  military  academy  in  Amer- 
ica be  practicable  at  this  time,  it 
must  be  grounded  on  the  permanent 
military  establishment  of  our  fron- 
tier posts  and  arsenals,  and  the 
wants  of  the  States,  separately,  of 
officers  to  command  tlic  defences 
of  their  sea-coasts.     On  this  prin- 


ciple, it  might  be  expedient  to  es- 
tablish a  military  school,  or  acad- 
emy, at  West  Point.  And  that  a 
competent  number  of  young  gentle- 
men might  be  induced  to  become 
students,  it  might  be  made  a  rule, 
that  vacancies  in  the  standing  regi- 
ments should  be  supplied  from 
thence ;  those  few  instances  ex- 
cepted where  it  would  be  just  to 
promote  a  very  meritorious  ser- 
geant. For  this  end,  the  number 
which  shall  be  judged  requisite  \o 
supply  vacancies  in  the  standing 
regiment  might  be  fixed,  and  that 
of  the  students,  who  are  admitted 
with  an  exception  of  filling  them, 
limited  accordingly.  They  might 
be  allowed  subsistence  at  the  pub- 
lic expense.  If  any  other  youth 
desired  to  pursue  the  same  studies 
at  the  military  academy,  they  might 
be  admitted,  only  subsisting  them- 
selves. Those  students  should  be 
instructed  in  what  is  usually  called 
military  discipline,  tactics,  and  the 
theory  and  practice  of  fortification 
and  gunnery.  The  comnuindant 
and  one  or  two  other  officers  of  the 
standing  regiment,  and  the  engi- 
neers, making  West  Point    their 


ch.  m.] 


THE   CONFEDEEATION. 


219 


In  all  this  design,  Hamilton  pursued  the  X3urpose, 
which  he  had  long  entertained,  of  strengthening  and 
consolidating  the  Union,  and  guarding  against  its 
dissolution,  by  providing  the  means  necessary  for  its 
defence.  Federal,  rather  than  State  provision  for 
the  defence  of  every  part  of  the  Confederacy,  in  peace 
as  well  as  in  war,  seemed  to  him  essential.  He 
thought,  that  the  general  government  should  have 
exclusively  the  power  of  the  sword,  and  that  each 
State  shoidd  have  no  forces  but  its  niilitia.^     But  Ms 


general  residence,  would  be  the 
masters  of  the  academy ;  and  the 
inspector-general  superintend  the 
whole."  (Ibid.)  The  subject  of 
a  peace  establishment  was  made 
one  of  the  four  principal  topics  on 
which  Washington  afterwards  en- 
larged in  his  circular  letter  to  the 
States,  in  June  ;  but  his  sugges- 
tions related  chiefly  to  a  uniform 
organization  of  the  militia  through- 
out the  States.  He  subsequently 
had  several  conferences  with  the 
committee  of  Congress,  on  the 
whole  subject,  but  nothing  was 
done.     (Vide  note,  infra.) 

1  Life  ofHamilton,  II.  214-219. 
The  State  of  New  York  precipi- 
tated the  constitutional  question,  by 
demanding  that  the  Western  posts 
within  her  limits  should  be  garri- 
soned by  troops  of  her  own,  and 
by  instructing  her  delegates  in  Con- 
gress to  obtain  a  declaration,  con- 
formably to  the  sixth  article  of  the 
Confederation,  of  the  number  of 
troops  necessary  for  that  purpose. 
Hamilton  forbore  to  press  this  ap- 
plication while  the  general  subject 


of  a  peace  establishment  was  under 
consideration.  But  the  doubts  that 
arose  as  to  the  constitutional  power 
of  Congress  to  raise  an  army  for 
the  purposes  of  peace,  and  the  ur- 
gency of  the  case,  made  it  neces- 
sary to  adopt  a  temporary  measure 
with  regard  to  the  frontier  posts, 
and  to  direct  the  commander-in- 
chief  to  garrison  them  with  a  part 
of  the  troops  of  the  United  States 
which  had  enlisted  for  three  years. 
This  was  ordered  on  the  12th  of 
May.  Soon  after,  the  mutiny  of  a 
portion  of  the  new  levies  of  the 
Pennsylvania  line  occurred,  which 
drove  Congress  from  Philadelphia 
to  Princeton,  on  the  2l6t  of  June. 
At  Princeton,  they  remained  dur- 
ing the  residue  of  the  year,  but 
with  diminished  numbers  and  often 
without  a  constitutional  quorum  of 
States.  In  September,  General 
Washington  wrote  to  Governor 
Clinton:  "Congress  have  come  ta 
no  determination  yet  respecting  a 
peace  establishment,  nor  am  I  able 
to  say  when  they  will.  I  have 
lately  had  a  conference  with  a  com- 


220 


THE   FEDERAL  CONSTITUTION. 


[Book  II. 


great  plans  were  arrested,  partly  in  consequence  of 
the  doubts  entertained  on  the  point  of  constitutional 
power,  and  partly  by  reason  of  the  great  falling  off 
of  the  attendance  of  members  in  Congress.  At  the 
very  time  when  this  important  subject  was  under 
consideration.  Congress  were  driven  from  Philadel- 
phia, by  the  mutiny  of  a  handful  of  men,  whom  they 
could  not  curb  at  the  moment  without  the  aid  of  the 
local  authorities,  and  that  aid  was  not  promptly  and 
efficiently  given.-^ 


mittee  on  this  subject,  and  have  re- 
iterated my  former  opinions :  but 
it  appears  to  me,  that  there  is  not 
a  sufficient  representation  to  dis- 
cuss great  national  points  ;  nor  do 
I  believe  there  will  be,  while  that 
honorable  body  continue  their  ses- 
sions at  this  place.  The  want  of 
accommodation,  added  to  a  disin- 
clination in  the  Southern  delegates 
to  be  farther  removed  than  they 
formerly  were  from  the  centre  of 
the  empire,  and  an  aversion  in  the 
others  to  give  up  what  they  con- 
ceive to  be  a  point  gained  by  the 
late  retreat  to  this  place,  keep  mat- 
ters in  an  awkward  situation,  to  the 
very  great  interruption  of  national 
concerns.  Seven  States,  it  seems, 
by  the  Articles  of  Confederation, 
must  agree,  before  anyplace  can 
be  fixed  upon  for  the  seat  of  the 
federal  government ;  and  seven 
States,  it  is  said,  never  will  agree  ; 
consequently,  as  Congress  came 
here,  here  they  are  to  remain,  to  the 
dissatisfaction  of  the  majority  and 
a  sreat  let  to  business,  having  none 


of  the  public  offices  about  them,  nor 
any  place  to  accommodate  them,  if 
they  were  brought  up;  and  the 
members,  from  this  or  some  other 
cause,  are  eternally  absent." 

1  Mr.  Madison  has  given  the 
following  account  of  this  occur- 
rence: —  "On  the  19th  of  June, 
Congress  received  information  from 
the  Executive  Council  of  Pennsyl- 
vania, that  eighty  soldiers,  who 
would  probably  be  followed  by 
others,  were  on  the  way  from  Lan- 
caster to  Philadelphia,  in  spite  of 
the  expostulations  of  their  officers, 
declaring  that  they  would  proceed 
to  the  seat  of  Congress  and  de- 
mand justice,  and  intimating  de- 
signs against  the  Bank.  A  com- 
mittee, of  which  Colonel  Hamilton 
was  chairman,  was  appointed  to 
confer  with  the  executive  of  Penn- 
sylvania, and  to  take  such  meas- 
ures as  they  should  find  necessary. 
After  a  conference,  the  committee 
reported  that  it  was  the  opinion  of 
the  executive  that  the  militia  of 
Philadelphia  would    probably    no 


Ch  m.] 


THE   CONTEDEEATION. 


221 


Convinced,  at  length,  that  no  temporary  expedi 
ents  would  meet  the  wants  of  the  country,  and  that  a 
radical  reform  of  its  constitution  could  alone  preserve 
the  Union  from  dissolution,  Hamilton  surveyed  the 
Confederation  in  all  its  parts,  and  determined  to  lay 
before  the  country  its  deep  defects,  with  a  \iew  to  the 
estabUshment  of  a  government  mth  proper  depart- 
ments and  adequate  powers.  In  this  examination, 
he  applied  to  the  Confederation  the  approved  max- 
ims of  free  government,  which  had  been  made  famil- 


be  willing  to  take  arms  before  they 
should  be  provoked  by  some  actual 
outrage  ;  that  it  would  hazard  the 
authority  of  government  to  make 
the  attempt ;  and  that  it  would  be 
necessary  to  let  the  soldiers  come 
into  the  city,  if  the  ofBcers  who  had 
gone  out  to  meet  them  could  not 
stop  them.  The  next  day  the  sol- 
diers arrived  in  the  city,  led  by 
their  sergeants,  and  professing  to 
have  no  other  object  than  to  obtain 
a  settlement  of  accounts,  which 
they  supposed  they  had  a  better 
chance  for  at  Philadelphia  than  at 
Lancaster.  On  the  21st,  they  were 
drawn  up  in  the  street  before  the 
State-House,  where  Congress  were 
assembled.  The  Executive  Council 
of  the  State,  sitting  under  the  same 
roof,  was  called  on  for  the  proper 
interposition.  The  President  of 
the  State  (Dickinson)  came  in  and 
explained  the  difficulty  of  bringing 
out  the  militia  of  the  place  for  the 
suppression  of  the  mutiny.  He 
thought  that,  without  some  outrages 
on  persons  or  property,  the  militia 


could  not  be  relied  on.  General 
St.  Clair,  then  in  Philadelphia,  was 
sent  for,  and  desired  to  use  his  in- 
terposition, in  order  to  prevail  on 
the  troops  to  return  to  the  barracks. 
But  his  report  gave  no  encourage- 
ment. In  this  posture  of  things, 
it  was  proposed  by  Mr.  Izard  that 
Congress  should  adjourn.  Colonel 
Hamilton  proposed  that  General 
St.  Clair,  in  concert  with  the  Ex- 
ecutive Council  of  the  State,  should 
take  order  for  terminating  the  mu- 
tiny. Mr.  Reed  moved  that  the 
General  should  endeavor  to  with- 
draw the  mutineers,  by  assuring 
them  of  the  disposition  of  Congress 
todo  them  justice.  Nothing,  how- 
ever, was  done.  The  soldiers  re- 
mained in  their  position,  occasion- 
ally uttering  offensive  words  and 
pointing  their  muskets  at  the  win- 
dows of  the  hall  of  Congress.  At 
the  usual  hour  of  adjournment  the 
members  went  out,  without  ob- 
struction ;  and  the  soldiers  retired 
to  their  barracks.  In  the  eveninc- 
Congress  reassembled,  and  appoint 


222  THE  FEDERAL  CONSTITUTION.  [Book  II. 

iar  ill  the  formation  of  the  State  constitutions,  and 
which  point  to  the  distinct  separation  of  the  legisla- 
tive, executive,  and  judicial  functions.  The  Confed- 
eration vested  all  these  powers  in  a  single  body,  and 
thus  \iolated  the  principles  on  which  the  govern- 
ment of  nearly  every  State  m  the  Union  was  founded. 
It  had  no  federal  judicature,  to  take  cognizance  of 
matters  of  general  concern,  and  especially  of  those  in 
which  foreign  nations  and  their  subjects  were  con- 
cerned ;  and  thus  national  treaties,  the  national  faith, 
and  the  public  tranquillity  were  exposed  to  the  con- 
flict of  local  regulations  against  the  powers  vested  in 
the  Union.  It  gave  to  Congress  the  power  of  ascer- 
tamiiig  and  appropriating  the  sums  necessary  for  the 
public  expenses,  but  mthheld  all  control  over  either 
the  imposition  or  collection  of  the  taxes  by  which 
they  were  to  be  raised,  and  thus  made  the  inclina- 
tions, not  the  abilities,  of  the  respective  States,  the 
criterion  of  their  contributions  to  the  common  ex- 
penses of  the  Union.  It  authorized  Congress  to  bor- 
row money,  or  emit  bills,  on  the  credit  of  the  United 
States,  without  the  power  of  providing  funds  to 
secure  the  repayment  of  the  money,  or  the  redemp- 
tion of  the  bills  emitted. 

ed  a  committee  to  confer  anew  with  24tli,  the  efforts  of  the  State  au- 
the  executive  of  ihe  State.  This  thority  being  despaired  of,  Con- 
conference  produced  nothing  but  gress  were  summoned  by  the  Pres- 
a  repetition  of  the  doubts  concern-  idcnt  to  meet  at  Trenton."  (EJ- 
ing  the  disposition  of  the  militia  to  Hot's  Debates,  I.  92-94.)  The 
act,  unless  some  actual  outrage  were  mutiny  was  afterwards  suppressed 
offered  to  persons  or  property,  the  by  marching  troops  into  Pennsyl- 
insult  to  Congress  not  being  deemed  vania  under  Major-General  Howe, 
a  sufficient   provocation.      On   the  (Journals,  VIIl.  281.) 


Ch.  III.]  THE  CONFEDERATION.  223 

It  made  no  proper  or  competent  provision  for  inte- 
rior or  exterior  defence  ;  for  interior  defence,  because 
it  allowed  the  individual  States  to  appoint  all  regi- 
mental officers  of  the  land  forces,  and  to  raise  the 
men  in  their  own  way,  while  at  the  same  time  an 
ambiguity  rendered  it  uncertam  whether  the  defence 
of  the  comitry  in  time  of  peace  was  not  left  to  the 
particular  States,  both  by  sea  and  land ;  —  for  exte- 
rior defence,  because  it  authorized  Congress  to  build 
and  equip  a  navy,  without  providuig  any  compulsory 
means  of  manning  it. 

It  failed  to  vest  in  the  United  States  a  general 
supermtendence  of  trade,  equally  necessary  both 
■with  a  view  to  revenue  and  regulation. 

It  required  the  assent  of  nine  States  in  Congress 
to  matters  of  principal  importance,  and  of  seven  to 
all  others  except  adjomiiments  from  day  to  day,  and 
thus  subjected  the  sense  of  a  majority  of  the  people 
of  the  United  States  to  that  of  a  minority,  by  putting 
it  in  the  power  of  a  small  combination  to  defeat  the 
most  necessary  measures. 

Finally,  it  vested  in  the  federal  government  the 
sole  direction  of  the  interests  of  the  United  States  in 
their  intercourse  with  foreign  nations,  mthout  em- 
powering it  to  pass  all  general  laws  in  aid  and  sup- 
port of  the  laws  of  nations ;  thus  exposing  the  faith, 
reputation,  and  peace  of  the  coimtry  to  the  irregu- 
lar action  of  the  particular  States.^ 

Ha\4ng  thus  fully  analyzed  for  himself  the  nature 

1  Life  of  Hamilton,  II.  230-237. 


224  -         THE  FEDERAL  CONSTITUTION.  [Book  U 

of  the  existing  constitution,  Hamilton  proposed  to 
himself  the  undertaking  of  inducing  Congress  freely 
and  frankly  to  inform  the  country  of  its  imperfec- 
tions, which  made  it  impossible  to  conduct  the  pub- 
lic affairs  with  honor  to  themselves  and  advantage 
to  the  Union;  and  to  recommend  to  the  several 
States  to  appouit  a  convention,  with  full  powers 
to  revise  the  Confederation,  and  to  adopt  and  pro 
pose*  such  alterations  as  might  appear  to  be  neces- 
sary, which  should  be  finally  approved  or  rejected 
by  the  States.^ 

But  he  was  surrounded  by  men,  who  were  not 
equal  to  the  great  enterprise  of  guiding  and  enlight- 
ening public  sentiment.  He  was  in  advance  of  the 
time,  and  far  in  advance  of  the  men  of  the  time. 
He  experienced  the  fate  of  all  statesmen,  in  the 
like  position,  whose  ideas  have  had  to  wait  the  slow 
development  of  events,  to  bring  them  to  the  popular 
comprehension  and  assent.  He  saw  that  his  plans 
could  not  be  adopted ;  and  he  passed  out  of  Congress 
to  the  pursuits  of  private  life,  recording  upon  them 
his  conviction,  that  their  pubKc  proposal  would  have 
failed  for  want  of  support.^ 

There  was  in  fact  a  manifest  indisposition  in  Con 
gress  to  propose  any  considerable  change  in  the  prin- 
ciple of  the  government.  Hence,  nothing  but  the 
revenue  system,  with  a  change  m  the  rule  by  which 
a  partition  of  the  common  burdens  was  to  be  made, 
was  publicly  proposed.     Although  this  system  was  a 

1  Life  of  Hamilton,  II. '230-237.  2  ibid 


Ch.  in.]  THE   CONFEDERATION.  225 

great  improvement  upon  that  of  the  Confederation, 
it  related  simply  to  revenue,  in  regard  to  which  it 
proposed  a  reform,  not  of  the  principle  of  the  gov- 
ernment, but  of  the  mode  of  operation  of  the  old 
system ;  for  it  embraced  only  a  specific  pledge  by  the 
States  of  certain  duties  for  a  limited  term,  and  not  a 
grant  of  the  unhmited  power  of  levying  duties  at 
pleasure.  There  was  confessedly  a  departure  ft'om 
the  strict  maxims  of  national  credit,  by  not  making 
the  revenue  coextensive  with  its  object,  and  by  not 
placing  its  collection  in  every  respect  under  the  au- 
thority charged  with  the  management  and  payment 
of  the  debt  which  it  was  designed  to  meet.-^ 

These  relaxations  were  a  sacrifice  to  the  jealousies 
of  the  States ;  and  they  show  that  the  time  had  not 
come  for  a  change  from  a  mere  federative  union  to  a 
constitutional  government,  founded  on  the  popular 
mil,  and  therefore  acting  by  an  energy  and  voHtion 
of  its  own. 

The  temper  of  the  time  was  wholly  unfavorable  to 
such  a  change.  The  early  enthusiasm  mth  which 
the  nation  had  rushed  into  the  conflict  mth  Eng 
land,  guided  by  a  common  impulse  and  animated  by 
a  national  spirit,  had  given  place  to  calculations  of 
local  interest  and  advantage;  and  the  prmciple  of 
the  Confederation  was  tenaciously  adhered  to,  while 
the  events  which  accompanied  and  followed  the  peace 
were  rapidly  displacing  its  radical  incapacity.     The 

>  See  ths  Address  to  the  States,      the   pen  of  Mr.    Madison.     Jour- 
accompanying  the   proposed  reve-      nals,  A^'III.  194-201. 
nue  system,  April  26,  1733,  from 

VOL.  I.  29 


226  THE  FEDEEAL  CONSTITUTION.  [Book  11. 

formation  of  tlie  State  governments,  and  the  con- 
sequent growth  and  miportance  of  State  interests, 
which  came  into  existence  with  the  Confederation, 
and  the  fact  that  the  Confederation  was  itself  an 
actual  diminution  of  the  previous  powers  of  the 
Union,  may  be  considered  the  chief  causes  of  the 
decline  of  a  national  spirit.  That  spirit  was  des- 
tined to  a  still  fui'ther  decay,  until  the  conflict  of 
State  against  State,  and  of  section  against  section,  by 
shaking  the  government  to  its  foundation,  should 
reveal  both  the  necessity  for  a  national  sovereignty 
and  the  means  by  which  it  could  be  called  into  life. 

As  a  consequence  and  proof  of  the  decline  of  na- 
tional power,  it  is  worthy  of  observation,  that,  at  the 
close  of  the  year  1783,  Congress  had  practically 
dwindled  to  a  feeble  junto  of  about  twenty  persons, 
exercising  the  various  powers  of  the  government,  but 
without  the  dignity  and  safety  of  a  local  habitation. 
Migratmg  from  city  to  city  and  from  State  to  State, 
unable  to  agree  upon  a  seat  of  government,  from 
jealousy  and  sectional  policy;  now  assembling  in 
the  capitol  of ,a  State,  and  now  m  the  halls  of  a  col- 
lege ;  at  all  tunes  dependent  upon  the  protection 
and  even  the  countenance  of  local  authorities,  and 
without  the  presence  of  any  of  the  great  and  power- 
ftd  minds  who  led  the  earlier  counsels  of  the  coun- 
try, tliis  body  presented  a  not  inadequate  t^'pe  of  the 
decaying  powers  of  the  Union.^     At  no  time  in  the 

1  The  first  Continental  Congress  of  the  Union  of  any  of  the  princi- 
was  caljed  to  meet  at  Philadelphia,  pal  cities  in  the  United  States, 
that  beinof  the  nearest  to  the  centre      Succeeding  Congresses  had  been 


Uii.  III.J 


THE  CONFEDERATION. 


227 


history  of  the  Confederation,  had  all  the  States  been 
represented  at  once ;  and  the  return  of  peace  seemed 


held  there,  with  the  exception  of 
the  period  when  the  city  was  in 
the  possession  of  the  enemy,  in  the 
year  1777,  until,  on  the  21st  of 
June,  1783,  in  consequence  of  the 
mutiny  of  the  soldiers,  the  Presi- 
dent was  authorized  to  summon  the 
members  to  meet  at  Trenton,  or 
Princeton,  in  New  Jersey,  "  in 
order  that  further  and  more  effec- 
tual measures  may  be  taken  for 
suppressing  the  present  revolt,  and 
maintaining  the  dignity  and  author- 
ity of  the  United  States."  On  the 
30th,  Congress  assembled  at  Prince- 
ton, in  the  halls  of  the  college, 
which  were  tendered  by  its  officers 
for  their  use.  In  August,  a  prop- 
osition was  made  to  return  to  Phil- 
adelphia, and  that,  on  the  second 
Monday  in  October,Congress  should 
meet  at  Annapolis,  unless  in  the 
mean  time  it  had  been  ordered  other- 
wise. But  this  was  not  agreed  to. 
A  committee  was  then  appointed 
(in  September),  "  to  consider  what 
jurisdiction  may  be  proper  for  Con- 
gress in  the  place  of  their  perma- 
nent residence."  This  seems  to 
have  been  followed  by  propositions 
from  several  of  the  States,  from 
New  York  to  Virginia  inclusive,  re- 
specting a  place  for  the  permanent 
residence  of  Congress,  although  the 
Journal  does  not  state  what  they 
were.  A  question  was  then  taken 
(October  6),  in  which  State  build- 
ings should  be  provided  and  erected 
for  the  residence  of  Cbngress,  be- 
ginning with  New  Hampshire  and 


proceeding  with  alf  the  States  in 
their  order.  Each  State  was  neg- 
atived in  its  turn.  The  highest 
number  of  votes  given  (by  States) 
were  for  New  Jersey  and  Mary- 
land, which  had  four  votes  each. 
A  resolution  was  then  carried, 
"  that  buildings  for  the  use  of 
Congress  be  erected  on  or  near  the 
banks  of  the  Delaware,  provided  a 
suitable  district  can  be  procured 
on  or  near  the  banks  of  said  river, 
for  a  federal  town  ;  and  that  the 
right  of  soil,  and  an  exclusive  or 
such  jurisdiction  as  Congress  may 
direct,  shall  be  vested  in  the  United 
States  "  ;  and  a  committee  was  ap- 
pointed, to  repair  to  the  falls  of  the 
Delaware,  to  view  the  country,  and 
report  a  proper  district  for  this  pur- 
pose. A  variety  of  motions  then 
followed,  for  the  selection  of  a  place 
of  temporary  residence,  but  none 
was  adopted.  On  the  17th  of  Oc- 
tober, a  proposition  was  made  by 
a  delegate  of  Massachusetts  (Mr. 
Gerry),  to  have  buildings  provided 
for  the  alternate  residence  of  Con- 
gress in  two  places,  with  the  idea 
of  "  securing  the  mutual  confidence 
and  affection  of  the  States,  and  pre- 
ser^'ing  the  federal  balance  of  pow 
er";  but  the  question  was  lost 
Afterwards,  the  following  resolu- 
tion was  agreed  to  :  "  Whereas, 
there  is  reason  to  expect  that  the 
providing  buildings  for  the  alter- 
nate residence  of  Congress  in  two 
places  will  be  productive  of  the 
most  salutary  effects,  by  securing 


228  THE ,  FEDERAL  CONSTITUTION.  [Book  H. 

likely  to  reduce  the  entire  machinery  of  the  govern- 
ment to  a  state  of  complete  inaction.-^ 

The  Confederation,  at  the  close  of  the  war,  is 
found  to  have  accomplished  much,  and  also  to  have 
failed  to  accomplish  much  more.  It  had  effected  the 
cession  of  the  puhhc  lands  to  the  United  States ;  for 
although  that  cession  was  not  completed  until  after 
the  peace,  still  the  arch  on  which  the  Union  was 
ultimately  to  rest  for  Avhatever  of  safety  and  per- 
petuity remamed  for  it  through  the  four  following 
years,  was  deposited  in  its  place,  when  the  Confed- 
eration was  established.  It  had  also  placed  the 
United  States,  as  a  nation,  m  a  position  to  contract 
some  alliances  mth  foreign  powers.  It  had  finished 
the  war;  it  had  achieved  the  independence  of  the 
nation ;  and  had  given  peace  to  the  country.  It  had 
thus  demonstrated  the  value  of  the  Union,  although 
its  defective  construction  aided  the  development  of 

the  mutual  confidence  and  aflec-  ods  of  not  more  than  one  year  and 
tions  of  the  States,  Resolved,  Tliat  not  less  than  six  months,  in  Tren- 
buildings  be  likewise  erected,  for  ton  and  Annapolis  ;  and  the  Presi- 
the  use  of  Congress,  at  or  near  dent  is  hereby  authorized  and  di- 
the  lower  falls  of  the  Potomac,  or  rected  to  adjourn  Congress  on  the 
Georgetown,  provided  a  suitable  twelfth  day  of  November  next,  to 
district  on  the  banks  of  the  river  meet  at  Annapolis  on  the  twenty- 
can  be  procured  for  a  federal  town,  sixth  day  of  the  same  month,  for 
and  the  right  of  soil,  and  an  exclu-  the  despatch  of  public  business." 
sive  jurisdiction,  or  such  as  Con-  (Journals  of  Congress  from  June 
gress  may  direct,  shall  be  vested  in  to  November,  1783.) 
the  United  States;  and  that  until  ^  Report  of  a  committee  appoint- 
the  buildings  to  be  erected  on  the  ed  to  devise  means  for  procuring  a 
banks  of  the  Delaware  and  Poto-  full  representation  in  Congress, 
mac  shall  be  prepared  for  the  re-  made  November  1,  1783.  Jour- 
ception  of  Congress,  their  residence  nals,  VIII.  480-482. 
Khali  bo  alternately,  at  equal  peri- 


Ch.  III.] 


THE  CONFEDERATION.  229 


tendencies    which    weakened    and    undermined    its 

strength. 

But  its  imperfect  performance  of  the  great  tasks 
to  which  it  had  been  called,  displayed  its  inherent 
defects.     It  had  often  been  unequal  to  the  purpose 
of  effectually  drawing  forth  the  resoui'ces  of  its  mem- 
bers for  the  common  welfare  and  defence.     It  had 
often  wanted  an   army  adequate  to   the  protection 
and  pi-oportioned  to  the  abilities  of  the  country.     It 
had,  therefore,  seen  important  posts  reduced,  others 
imminently  endangered,  and  whole  States  and  large 
parts  of  others  overrun  by  small  bodies  of  the  ene- 
my; _had  been  destitute  of  sufficient  means  of  feed- 
ing, clothing,  paying,  and  appointing  its  troops,  and 
had  thus  exposed  them  to  sufferings  for  which  his- 
tory scarcely  affords  a  parallel.     It  had  been  com 
pelled  to  make  the  administration   of  its  affairs  a 
succession  of  temporary  expedients,  mconsistent  with 
order,  economy,  energy,  or  a  scrupulous  adherence 
to  iDublic  engagements.     It  found  itself,  at  the  close 
of  the  war,  without  any  certain  means  of  domg  jus- 
tice to  those  who  had  been  the  principal  supporters 
of  the   Union;  — to    an    army   which  had   bravely 
fought,  and  patiently  suffered,  —  tq  citizens  and  to 
foreigners,  who  had  cheerfully  lent  theii'  money,  — 
and  to  others  who  had  contributed  property  and  per- 
sonal service  to  the  common  cause.     It  was  obhged 
to  rely,  for  the  last  hope  of  doing  that  justice,  on  the 
precarious  concurrence  of  thirteen   distinct  legisla- 
tures, the  dissent  of  either  of  which  might  defeat  the 
plan,  and  leave  the  States,  at  an  early  period  of  their 


230  THE  FEDEEAL  CONSTITUTION.  [Book  U. 

existence,  involved  in  all  the  disgrace  and  miscliiefs 
of  violated  faith  and  national  bankruptcy.^ 

While,  therefore,  the  United  States  emerged  from 
the  war,  which  for  seven  long  years  had  wasted  the 
energies  and  drained  the  resources  of  the  people, 
with  national  independence,  dark  and  portentous 
clouds  gathered  about  the  dawn  of  peace,  as  the 
future  opened  before  them.  The  past  had  been 
crowned  with  victory ;  —  dearly  bought,  but  not  at 
•too  dear  a  price,  for  it  brought  with  it  the  vast  boon 
of  civil  liberty.  But  the  dangers  and  embarrassments 
through  which  that  victory  had  been  achieved  made 
it  apparent  that  the  government  of  the  country  was 
unequal  to  its  protection  and  prosperity.  That  gov- 
ernment was  now  called  to  assume  the  great  duties 
of  peace,  without  the  acknowledged  power  of  main- 
taining either  an  army  or  a  iiaYj,  and  without  the 
•means  of  combining  and  directing  the  forces  and 
wUls  of  the  several  parts  to  a  general  end ;  without 
the  least  control  over  commerce ;  without  the  poAver 
to  fulfil  a  treaty ;  without  laws  actmg  upon  individ- 
uals ;  and  with  no  mode  of  enforcing  its  o^^ll  will, 
but  by  coercing  a  delinquent  State  to  its  federal  obli- 
gations by  force  of  arms.  How  it  met  the  great  de- 
mands upon  its  energy  and  durability  which  its  new 
duties  involved,  we  are  now  to  inquire. 

1  Hamilton's  proposed  Resolutions  ;  Life,  II.  230-230-237. 


BOOK     III. 

THE  CONSTITUTIONAL  HISTORY  OF  THE  UNITED 
STATES,  FROM  THE  PEACE  OF  1783  TO  THE 
FEDERAL    CONVENTION    OF    1787. 


CHAPTETt  I. 

Januaky,  1784  — May,  1787. 

DuTifes     AND    Necessities    of    Congress.  —  Requisitions    on    thb 
States.  —  Revenue   System   of    1783, 

The  period  which  now  claims  our  attention  is 
that  extending  from  the  Peace  of  1783  to  the  call- 
ing of  the  Convention  which  framed  the  Constitu- 
tion, in  1787.  It  was  a  period  full  of  dangers  and 
difficulties.  The  destinies  of  the  Union  seemed  to  be 
left  to  all  the  hazards  arising  from  a  defective  gov- 
ernment and  the  illiberal  and  contracted  policy  of 
its  members.  Patriotism  was  generally  thought  to 
consist  m  adliesion  to  State  interests,  and  a  reluc- 
tance to  intrust  power  to  the  organs  of  the  nation. 
The  national  obhgations  were  therefore  disregarded; 
treaty  stipulations  remained  luifulfilled ;  the  great 
duty  of  justice  failed  to  be  discharged;  rebellion 
raised  a  dangerous  and  nearly  successful  front ;  and 
the  commerce  of  the  country  was  exposed  to  the 
injurious  policy  of  other  nations,  with  no  means 
of  coimteracting  or  escaping  from  ■  its  effects.  At 
length,  the  people  of  the  United  States  began  to 
see  danger  after  they  had  felt  it,  and  the  growth 
of  sounder   \'iews  and   higher  principles  of  public 

VOL.  I.  30 


234  THE  FEDEKAL  CONSTITUTION.  [Book  HI. 

conduct  gave  to  the  fiiends  of  order,  public  faith, 
and  national  security  a  controllmg  influence  in  the 
country,  and  enabled  the  men,  who  had  won  for  it 
the  blessings  of  liberty,  to  establish  for  it  a  durable 
and  sufficient  government. 

Four  years  only  elapsed,  between  the  return  of 
peace  and  the  downfall  of  a  government  which  had 
been  framed  with  the  hope  and  promise  of  perpetual 
duration ;  —  an  interval  of  time  no  longer  than  that 
during  which  the  people  of  the  United  States  are 
now  accustomed  to  witness  a  change  of  their  rulers, 
without  injury  to  any  principle  or  any  form  of  their 
institutions.  But  this  brief  mterval  was  full  of  suf- 
fering and  peril.  There  are  scarcely  any  evils  or 
dangers,  of  a  political  nature,  and  springing  from 
political  and  social  causes,  to  which  a  free  people  can 
be  exposed,  which  the  people  of  the  United  States 
did  not  experience  during  this  period.  That  these 
evils  and  dangers  did  not  precipitate  the  country  into 
civil  war,  and  that  the  great  undertaking  of  forming 
a  new  and  constitutional  government,  by  delegates 
of  the  people,  could  be  entered  upon  and  prosecuted, 
with  the  calmness,  conciliation,  and  concession  essen- 
tial to  its  success,  is  owing  partly  to  the  fact  that  the 
country  had  scarcely  recovered  from  the  exhausting 
effects  of  the  Eevolutionary  struggle ;  but  mainly  to 
the  existence  of  a  body  of  statesmen,  formed  durmg 
that  struggle,  and  fitted  by  hard  experience  to  build 
up  the  government.  But  before  their  efforts  and  their 
influences  are  explained,  the  period  which  developed 
the  necessity  for  their  interposition  must  be  described. 


Ch.  I.]  THE   COKFEDEEATION.  235 

He  Avlio  would  know  what  the  Constitution  of  the 
United  States  was  designed  to  accomplish,  must  un- 
derstand the  circumstances  out  of  which  it  arose. 

On  the  3d  of  November,  1783,  a  new  Congress, 
according  to  annual  custom,  was  assembled  at  An- 
napolis, and  attended  by  only  fifteen  members,  from 
seven  States.  Two  great  acts  awaited  the  attention 
of  this  assembly ;  —  both  of  an  interesting  and  impor- 
tant character,  both  of  national  concern.  The  one 
was  the  resignation  of  Washington ;  a  solemnity 
which  appealed  to  every  feeling  of  national  gratitude 
and  pride,  and  which  would  seem  to  have  demanded 
whatever  of  pomp  and  dignity  and  power  the  United 
States  could  display.  The  other  was  a  legislative 
act,  which  was  to  give'  peace  to  the  country,  by  the 
ratification  of  the  Treaty.  Several  weeks  passed  on, 
and  yet  the  attendance  was  not  much  increased. 
Washhigton's  resignation  was  received,  at  a  public 
audience  of  seven  States,  represented  by  about  twenty 
delegates  ;^    and  on  the  same  day  letters  were  de- 

1  The  Journals  give  the  follow-  have  now  the  honor  of  offering  my 
ing  account  of  General  Washing-  sincere  congratulations  to  Con- 
ton's  resignation  :  —  gress,    and   of  presenting    myself 

"  According  to  order,  his  Excel-  before  them  to  surrender  into  their 
'ency  the  Commander-in-chief  was  hands  the  trust  committed  to  me, 
icknitted  to  a  public  audience,  and  and  to  claim  the  indulgence  of  re- 
being  seated,  the  President,  after  tiring  from  the  service  of  my  cnun- 
a  pause,  informed  him  that  the  Unit-  try.  Happy  in  the  confirmation  of 
ed  States  in  Congress  assembled  our  independence  and  sovereignty, 
were  prepared  to  receive  his  com-  and  pleased  with  the  opportunity 
miinications  ;  whereupon  he  arose  afforded  the  United  States  of  be- 
and  addressed  as  follows :  '  Mr.  coming  a  respectable  nation,  I  re- 
President.  —  The  great  events  on  sign  with  satisfaction  the  appoint- 
which  my  resignation  depended  ment  I  accepted  with  diffidence ; 
having   at  lougth    taken   place,   I  a  diffidence  in  my  abilities  to  ac- 


236 


THE  FEDER^VL  CONSTITUTION.  [Book  HI 


spatched  to  tlie  other  States,  ui-ging  them,  for  the 
safety,  honor,  and  good  faith  of  the  United  States, 
to  require  the  immediate  attendance  of  their  mem- 


complish  so  arduous  a  task ;  which, 
however,  was  superseded  by  a  con- 
fidence  in    the    rectitude    of    our 
cause,  the  support  of  the  supreme 
power  of  the  Union,  and  the  patron- 
age  of  Heaven.      The  successful 
termination  of  the  war  has  verified 
the  most  sanguine   expectations  ; 
and  my  gratitude  for  the  interposi- 
tion of  Providence,  and  the  assist- 
ance   I    have  received    from    my 
countrymen,  increases  with  every 
review  of  the  momentous  contest. 
While  I  repeat  my  obligations  to 
the  army  in  general,  I  should  do 
injustice  to  my  own  feelings  not  to 
acknowledge,  in  this  place,  the  pe- 
culiar  services    and   distinguished 
merits  of  the  gentlemen  who  have 
been  attached  to  my  person  during 
the  war.      It  was   impossible   the 
choice   of   confidential    officers   to 
compose   my   family   should   have 
been  more  fortunate.     Permit  me, 
sir,   to   recommend    in    particular 
those  who  have  continued  in  the 
service  to  the  present  moment,  as 
worthy  of  the  favorable  notice  and 
patronage  of  Congress.     I  consider 
it   an  indispensable   duty  to  close 
this  last  act  of  my  official  life  by 
commending  the   interests  of  our 
dearest  country  to  the   protection 
of  Almighty  God,  and  those  who 
have  the  superintendence  of  them 
to  his  holy  keeping.     Having  now 
finished  the  work  assigned  me,  I 
retire  from  the  great  theatre  of  ac- 
tion, and,   bidding  an  affectionate 


farewell  to  this  august  body,  under 
whose  orders  I  have  so  long  acted, 
I  here  offer  my  commission,  and 
take  my  leave  of  all  the  employ- 
ments of  public  life.'     He  then  ad- 
vanced and  delivered  to  the  Presi- 
dent his  commission,  with  a  copy 
of  his  address,  and  having  resumed 
his  place,  the  President  (Thomas 
Mifflin)  returned  him  the  following 
answer:  'Sir, — The  United  States 
in  Congress  assembled  receive  with 
emotions  too  affecting  for  utterance 
the  solemn  resignation  of  the  au- 
thorities under  which  you  have  led 
their  troops  with  success  through 
a  perilous  and  doubtful  war.   Called 
upon  by  your  country  to  defend  its 
invaded   rights,  you  accepted   the 
sacred  charge,  before  it  had  formed 
alliances,  and  whilst  it  was  without 
funds  or  a  government  to  support 
you.    You  have  conducted  the  great 
military  contest  with  wisdom  and 
fortitude,  invariably  regarding  the 
rights  of  the  civil  power  through 
all  disasters   and   changes.      You 
have,  by  the  love  and  confidence 
of   your    fellow-citizens,    enabled 
them  to  display  their  martial  gen- 
ius, and  transmit  their  fame  to  pos- 
terity.    You  have  persevered,  till 
these   United   States,   aided  by  a 
magnanimous    king    and    nation, 
have  been   enabled,   under   a  just 
Providence,  to  close   the   war   in 
freedom,  safety,  and  independence  ; 
on  which  happy  event  we  sincerely 
join  you  in  congratulations.     Hav- 


Ch.  I.] 


THE  CONTEDEEATION. 


237 


bers.-'  It  was  not,  however,  until  the  14th  of  Janu- 
ary that  the  Treaty  could  be  ratified  by  the  constitu- 
tional number  of  nine  States ;  and,  when  this  took 
place,  there  were  present  but  three-and-twenty  mem- 
bers.^ 

It  should  undoubtedly  be  considered,  that,  firom 
the  nature  and  form  of  the  government,  the  delegates 
in  Congress  had  m  some  sense  an  ambassadorial  char- 
acter, and  were  assembled  as  the  representatives  of  sov- 
ereign States.  But  with  whatever  dignity,  real  or  fic- 
titious, they  may  be  considered  as  havuig  been  clothed, 
the  government  itself  was  one  that  created  a  constant 
tendency  to  the  neglect  of  its  functions,  and  therefore 
produced  great  practical  evils.  The  Articles  of  Con- 
federation provided  that  delegates  should  be  annually 
appointed  by  the  States,  to  meet  in  Congress  on  the 
first  Monday  in  November  in  every  year;  and  al- 
though they  also  gave  to  Congress  the  power  of  act- 


ing defended  the  standard  of  liberty 
in  this  New  World,  having  taught 
a  lesson  useful  to  those  who  inflict 
and  to  those  who  feel  oppression,  you 
retire  from  the  great  theatre  of  ac- 
tion with  the  blessings  of  your  fel- 
low-citizens ;  but  the  glory  of  your 
virtues  will  not  terminate  with  your 
military  command ;  it  will  continue 
to  animate  remotest  ages.  We  feel 
with  you  our  obligations  to  the 
army  in  general,  and  will  particu- 
larly charge  ourselves  with  the  in- 
terests of  those  confidential  officers 
who  have  attended  your  person  to 
this  affecting  moment.  We  join 
you  in  commending  the  interests 
of  our  dearest  country  to  the  pro- 


tection of  Almighty  God,  beseech- 
ing him  to  dispose  the  hearts  and 
minds  of  its  citizens  to  improve 
the  opportunity  afforded  them  of 
becoming  a  happy  and  respectable 
nation.  And  for  you  we  address 
to  him  our  earnest  prayers  that  a 
life  so  beloved  may  be  fostered  with 
all  his  care  ;  that  your  days  may  be 
Ijappy  as  they  have  been  illustri- 
ous ;  and  that  he  will  finally  give 
you  that  reward  which  this  world 
cannot  give."  Journals,  IX.  12. 
13.     December  22,  1783. 

1  Ibid. 

2  Journals,  IX.  30.    January  14 
1784. 


238  THE  FEDEEAL  CONSTITUTION.  [Book  III. 

jouinment  for  a  recess,  during  which  the  government 
was  to  be  devolved  on  a  Committee  of  the  States, 
they  fixed  no  period  for  the  termmation  of  a  session. 
While  the  war  lasted,  it  had  been  both  customary  and 
necessary  for  the  old  Congress,  and  for  its  successors 
under  the  Confederation,  to  be  perpetually  in  ses- 
sion; and  this  practice  was  continued  after  the  peace, 
"with  very  short  intervals  of  Committees  of  the  States, 
partly  from  habit,  and  partly  in  consequence  of  the 
reduction  of  the  delegations  to  the  lowest  constitu- 
tional number.  This  rendered  despatch  impossible, 
by  putting  it  in  the  power  of  a  few  members  to  with- 
hold from  important  matters  the  constitutional  con- 
currence of  nine  States.  Without  any  reference  to 
popidation  by  the  Articles  of  Confederation,  not  less 
than  two  nor  more  than  seven  delegates  were  allowed 
to  each  State ;  and  by  casting  the  buixlen  of  main- 
taining its  own  delegates  upon  each  State,  they 
created  a  strong  motive  for  preferrmg  the  smaller 
number,  and  often  for  not  being  represented  at  all. 
This  motive  became  more  active  after  the  peace, 
when  the  immediate  stimulus  of  hostilities  was  with- 
drawn ;  and  it  was  at  the  same  time  accompanied,  in 
most  of  the  States,  by  a  great  jealousy  of  the  powers 
of  Congress,  a  disinclination  to  enlarge  them,  and  a 
prevalent  feeling  that  each  State  was  sufficient  unto 
itself  for  all  the  purposes  of  government.^  The  con- 
sequence  was,  that  the  Congress  of  the  Confedera- 
tion, from  the  ratification  of  the  Treaty  of  Peace  to 

1  See    Washington's    letter    to      of  January   18,    1784,     \Vritings, 
Governor    Harrison,   of   the    date       IX.  11. 


Cu.  I.] 


THE   CONTEDEEATION. 


239 


the  adoption  of  the  Constitution,  although  entitled  to 
ninety-one  members,  was  seldom  attended  by  one 
third  of  that  number ;  and  the  state  of  the  represen- 
tation was  sometimes  so  low,  that  one  eighth  of  the 
whole  number  present  could,  under  the  constitu- 
tional rule,  negative  the  most  important  measures.-^ 

Such  was  the  government  which  was  now  called 
to  provide  for  the  payment  of  at  least  the  interest 
on  the  public  debts,  and  to  prociu'e  the  means  for 


1  Twenty-three  members  voted 
on  the  ratification  of  the  Treaty, 
January  14,  1784.  On  the  19th 
of  April  of  the  same  year,  the  same 
number  being  present,  eleven  States 
only  being-  represented,  and  nine 
of  these  having  only  two  members 
each,  the  following  resolution  was 
passed  :  "  Resolved,  That  the  leg- 
islatures of  the  several  States  be 
informed,  that,  whilst  they  are  re- 
spectively represented  in  Congress 
by  two  delegates  only,  such  a  una- 
nimity for  conducting  the  most  im- 
portant public  concerns  is  neces- 
sary as  can  be  rarely  expected ; 
that  if  each  of  the  thirteen  Slates 
should  be  represented  by  two  mem- 
bers, five  out  of  twenty-six,  being 
only  a  fifth  of  the  whole,  may  neg- 
ative any  measures  requiring  the 
voice  of  nine  States  ;  that  of  eleven 
States  now  on  the  floor  of  Con- 
gress, nine  being  represented  by 
only  two  members  from  each,  it  is 
in  the  power  of  three  out  of  twenty- 
five,  making  only  one  eighth  of  the 
whole,  to  negative  such  a  measure, 
notwithstanding  that  by  the  Arti- 
cles of  Confederation  the  dissent 
of  five  out  of  thirteen,  being  more 


than  one  third  of  the  number,  is 
necessary  for  such  a  negative ; 
that  in  a  representation  of  three 
members  from  each  State,  not  less 
than  ten  of  thirty-nine  could  so 
negative  a  matter  requiring  the 
voice  of  nine  States ;  that,  from 
facts  under  the  observation  of  Con- 
gress, they  are  clearly  convinced 
that  a  representation  of  two  mem- 
bers from  the  several  States  is  ex- 
tremely injurious,  by  producing  de- 
lays, and  for  this  reason  is  likewise 
much  more  expensive  than  a  gen- 
eral representation  of  three  mem- 
bers from  each  State;  that  there 
fore  Congress  conceive  it  to  be  in- 
dispensably necessary,  and  earnest- 
ly recommend,  that  each  State,  at 
all  times  when  Congress  are  sit- 
ting, be  hereafter  represented  by 
three  members  at  least ;  as  the 
most  injurious  consequences  may 
be  expected  from  the  want  of  such 
representation."  At  the  time  when 
the  report  of  the  Convention,  trans- 
mitting the  Constitution,  was  re- 
ceived (September  28,  1787),  there 
were  thirty-three  members  in  at- 
tendance, from  twelve  States. 
Rhode  Island  was  not  represented 


240  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

its  own  support ;  to  carry  out  the  Treaty  of  Peace, 
and  secure  to  the  country  its  advantages;  to  com- 
plete the  cessions  of  the  Western  lands,  and  provide 
for  their  settlement  and  government;  to  guard  the 
commerce  of  the  country  agamst  the  hostile  policy  of 
other  nations ;  to  secure  to  each  State  the  forms  and 
principles  of  a  repubhcan  government;  to  extend 
and  seciu'e  the  relations  of  the  country  with  foreign 
powers ;  and  to  preserve  and  perpetuate  the  Union. 
By  tracing  the  history  of  its  efforts  and  its  failures 
with  regard  to  these  great  objects,  we  may  imder- 
stand  the  principal  causes  which  brought  about  the 
conviction  on  the  j)art  of  the  people  of  the  United 
States,  that  another  and  a  stronger  government  must 
take  the  place  of  the  Confederation. 

It  was  ascertained  in  April,  1784,  that  a  sum  ex- 
ceeding three  millions  of  dollars  would  be  wanted  to 
pay  the  arrears  of  interest,  and  to  meet  the  mterest  and 
current  expenses  of  the  public  service  for  the  year.^ 
Two  sources  only  could  be  looked  to  for  this  supply. 
It  must  either  be  obtamed  by  requisitions  on  the 
States,  according  to  the  old  rule  of  the  Confederation, 
or  from  the  new  duties  and  taxes  proposed  by  the 
revenue  system  of  1783.  But  that  proposal  was  still 
under  the  consideration  of  the  State  legislatiures;  some 
of  them  havmg  as  yet  ■  acceded  to  the  impost  only, 
and  others  having  decided  neither  on  the  impost 
nor  on  the  supplementary  taxes.  Some  time  must 
therefore  elapse  before  the  final  confirmation  of  tliis 

1  The  sura  reported  by  a  com-      cessary,  was  $3,812,539.33.   Jour- 
mittee,  and  finally  agreed  to  be  ne-      nals,  IX,  171,     April  27,  1784, 


Ch.  I.]  THE   CONFEDERATION.  241 

system,  even  if  its  final  confirmation  were  probable ; 
and,  after  it  should  have  been  confirmed,  further  time 
would  be  requisite  to  brmg  it  into  operation.  It  was 
quite  clear,  therefore,  that  other  measures  must  be  re- 
sorted to.  Requisitions  presented  the  sole  resource. 
But  in  what  mode  were  they  to  be  made  1  The  pre- 
cedins:  Congress  had  offered  two  recommendations  to 
the  States  on  the  subject  of  the  ride  of  the  Confeder- 
ation, Avhich  dii-ected  that  the  quotas  of  the  several 
States  should  be  apportioned  according  to  the  value 
of  their  lands.  The  Congress  of  1783,  in  order  to  give 
tliis  rule  a  fau'  trial,  had  recommended  to  the  States 
to  make  returns  of  their  lands,  buildmgs,  and  inhab- 
itants ;^  but,  apprehending  that  the  insufiiciency  of 
the  rule  would  immediately  show  itself,  they  had  fol- 
lowed this  recommendation  with  another,  to  change 
the  basis  of  contribution  fi'om  land  to  numbers  of 
inhabitants.^  Both  of  these  propositions  were  still 
under  the  consideration  of  the  State  legislatures,  and 
four  States  only  had  acceded  to  them.^  A  new  requi- 
sition, therefore,  if  made  at  all,  must  be  made  under 
the  old  rule  of  the  Confederation,  and  with  entkely 
imperfect  means  of  making  it  with  justice  and  equal- 
ity. It  was  found,  however,  that  large  arrears  were 
still  due  from  the  States,  of  the  old  requisitions  made 
during  the  war.*  A  new  call  upon  them  to  pay 
one  half  of  these  arrears,  deducting  therefrom  the 

1  Journals,  VIII.    129.     Febru-  ^  Of    the     old    requisition    of 
ary  17,  1783.  $8,000,000,niadeOctober  30, 1781, 

2  Ibid.  198.     April  26,  1783.  only  $  1,486,511.71  had  been  paid 

3  Connecticut,     New      Jersey,  by  all  the  States  before  December 
Pennsylvania,  and  South  Carolina.  31,  1783. 

VOL.    I.  31 


242  THE  EEDEEAL  CONSTITUTION.  [Book  III. 

amount  of  their  payments  to  the  close  of  the  year, 
would,  if  complied  with,  produce  a  sum  nearly  suffi. 
cient  for  the  wants  of  the  government.      This  re- 
source was  accordingly  tried.-^ 

In  the  year  1785,  three  millions,  it  was  ascer- 
tamed,  would  be  required  for  the  service  of  the  year. 
A  renewed  call  was  made  for  the  remaining  unpaid 
moiety  of  the  old  requisition  of  eight  millions,  and 
for  the  whole  of  the  old  requisition  of  two  millions ; 
but,  considering  that  the  public  faith  required  Con- 
gress to  continue  their  anni\al  demand  for  money, 
they  issued  a  new  requisition  for  three  millions,  and 
adjusted  it  according  to  the  best  information  they 
could  obtain.^ 

In  the  year  1786,  a  sum  of  more  than  three  mil- 
lions was  wanted  for  the  current  demands  on  the 
treasury,  and  a  new  requisition  was  made  for  it, 
under  the  old  rule  of  the  Confederation.^  Two  of 
the  States,  Rhode  Island  and  New.  Jersey,  thereupon 
passed  acts,  making  their  own  paper  currency  receiv- 
able on  all  arrears  of  taxes  due  to  the  United  States, 
and  proposing  to  pay  their  quotas  in  such  currency.* 

1  Journals,  IX.  171 -179.  April  to  admit  the  receipt  of  bills  of 
27,  1784.  credit,  issued  under  the  authority 

2  Journals,  X.  325-334.  Sep-  of  an  individual  State,  in  discharge 
tember  27,  1785.  of  their  specie    proportions  of  a 

3  Journals,  XI.  167.  August  requisition,  would  defeat  its  object, 
2,  1786.  as  the  said  bills  do  not  circulate 

'*  Ibid.    224.       September     18,  out  of  the  limits  of  the  State  in 

1786.       Upon     this     attempt     of  which   they  are  emitted,  and   be- 

Rhode    Island    and    New    Jersey  cause  a  paper  medium  of  any  State, 

to  pay  their  proportions    in   their  however  well  funded,  cannot,  cither 

own   paper    currency,    the   report  in  the  extensiveness  of  its  circula- 

of  a  committee  declared,  "That,  tion,  or  in  the  course  of  its  ex- 


Ch.  I.]  THE   CONFEDERATION.  243 

But  the  entire  inadequacy  of  this  source  of  supply 
to  mamtain  the  federal  government,  and  to  discharge 
the  annual  public  engagements,  had  now  become 
but  too  apparent.  From  the  1st  of  November,  1781, 
to  the  1st  of  January,  1786,  less  than  two  and  a  half 
millions  of  dollars  had  been  received  from  requisi- 
tions made  during  that  period,  amounting  to  more 
than  ten  millions.^  For  the  last  fourteen  months  of 
that  interval,  the  average  receipts  from  requisitions 
amounted  to  less  than  four  hundred  thousand  dol- 
lars per  annum,  while  the  interest  alone  due  on  the 
foreign  debt  was  more  than  half  a  million ;  and,  in 
the  course  of  each  of  the  nine  foUomng  years,  the 
average  sum  of  one  million,  annually,  would  become 
due  by  mstalments  on  the  principal  of  that  debt.^ 
In  addition  to  this,  the  interest  on  the  domestic 
debt;  the  seciuity  of  the  navigation  and  commerce 
of  the  country  against  the  Barbary  powers ;  the  im- 
mediate protection  of  the  people  dwelling  on  the 
frontier  from  the  savages ;  the  establishment  of  mili- 
tary magazines  in  different  parts  of  the  Union,  quite 
indispensable  to  the  public  safety;  the  maintenance 

charge,  be  equally  valuable  with  nothing  but  paper  would  be  brought 

gold  and  silver.     That  if  the  bills  into   the   federal    treasury,   which 

of  credit  of  the  States  of  Rhode  would   be  wholly   inapplicable   to 

Island  and  New  Jersey  were  to  be  the   payment   of  any  part  of  the 

received  from  those  States  in  dis-  interest  or  principal    of  the  for 

charge  of  federal  taxes,  upon  the  eign    debt,    or    the    maintenance 

principles  of   equal  justice,   bills  of  the  government  of  the  United 

emitted  by  any  other  States  must  States." 

be  received  from  them  also  in  pay-  i  Journals,  XI.   34  -  40.     Feb- 

ment    of    their    proportions,    and  ruary  15,  1786. 

thereby,  instead  of  the  requisitions  2  Ibid, 
yielding  a  sum  in  actual   money, 


244  THE  FEDERAL  CONSTITUTION.  [Book  III. 

of  the  federal  government  at  home,  and  the  support 
of  the  puhHc  servants  abroad,  —  each  and  all  de- 
pended upon  the  contribution  of  the  States  under  the 
annual  requisitions,  and  were  each  and  all  likely  to 
be  involved  in  a  common  failure  and  ruin.^ 

There  can  be  no  doubt  that  the  contmuance  of  the 
practice  of  making  requisitions,  after  the  proposal  of 
the  revenue  system  of  1783,  had  some  tendency  to 
prevent  the  adoption  of' that  system  by  the  States. 
But  there  was  no  other  alternative  withm  the  consti- 
tutional reach  of  Congress ;  and  in  the  mean  time, 
the  revenue  system,  submitted  as  it  necessarily  was 
to  the  legislatures  of  thirteen  different  States,  was, 
as  far  as  it  was  assented  to,  embarrassed  Avith  the 
most  discordant  and  irreconcilable  XDro^dsions.  It 
was  ascertained  in  February,  1786,  that  seven  of  the 
States  had  granted  the  impost  part  of  the  system,  in 
such  a  manner,  that,  if  the  other  six  States  had  made 
similar  grants,  the  plan  of  the  general  impost  might 
have  been  immediately  put  into  operation.^  Two  of 
the  other  States  had  also  granted  the  impost,  but 
had  embarrassed  their  grants  with  provisos,  which 
suspended  their  operation  until  all  the  other  States 
should  have  passed  laws  in  full  conformity  with  the 
whole  system.^  Two  other  States  had  fully  acceded 
to  the  system  in  all  its  parts ;  *  but  four  others  had 
not  decided  in  favor  of  any  part  of  it.^ 

'  Journals,  XI.    34-40.     Feb-  -^  Pennsylvania  and  Delaware, 

ruary  15,  178G.  ^  Delaware    and    North    Caro 

2  New    Hampshire,    Massachu-  lina. 

setts,    Connecticut,    New    Jersey,  ^  Rhode    Island,     New     York 

Virginia,     North     Carolina,     and  Maryland,  and  Georgia. 
South    Carolina. 


Ch.  I.]  fllE   CONEEDEBATION.  245 

No  member  of  the  Confederacy  had.  at  this  tune, 
suggested  to  Congress  any  reasonable  objection  to 
the  principles  of  the  system ;  and  the  contradictory 
provisions  by  which  their  assent  to  it  had  been 
clogged,  present  a  striking  proof  of  the  inherent 
difficulties  of  obtaining  any  important  constitutional 
change  from  the  legislatures  of  the  States.  The  gov- 
ernment was  founded  upon  a  prmciple,  by  which  all 
its  powers  were  derived  from  the  States  in  their  cor- 
porate capacities;  in  other  words,  it  was  a  govern- 
ment created  by,  and  deriving  its  authority  from,  the 
governments  of  the  States.  They  alone  could  change 
the  fundamental  law  of  its  organization ;  and  they 
were  actuated  by  such  motives  and  jealousies,  as  ren- 
dered a  unanimous  assent  to  any  change  a  great  im- 
probability. Still,  the  Congress  of  1786  hoped  that, 
by  a  clear  and  explicit  declaration  of  the  true  posi- 
tion of  the  country,  the  requisite  compliance  of  the 
States  might  be  obtained.  They  accordingly  made 
known,  in  the  most  solemn  manner,  the  public  em- 
barrassments, and  declared  that  the  crisis  had  arrived, 
when  the  people  of  the  United  States  must  decide 
whether  they  were  to  continue  to  rank  as  a  nation, 
by  mamtainmg  the  public  faith  at  home  and  abroad ; 
or  whether,  for  want  of  timely  exertion  in  estab- 
lishing a  general  revenue,  they  would  hazard  the 
existence  of  the  Union,  and  the  great  national  privi- 
leges which  they  had  fought  to  obtain.^ 

1  The  report  on  this  occasion  requisitions  of  Congress  for  eight 
(February  15,  1786),  drawn  by  years  past  have  been  so  irregular 
Rufus  King,  declared,  "  that   the       in  their  operation,  so  uncertain  in 


246  TliE  FEDEBAL  CONSTITlAlON.  [Book  m. 

Under  the  influence  of  this  urgent  representation, 
all  the  States,  except  New  York,  passed  acts  grant- 
ing the  impost,  and  vesting  the  power  to  collect  it  m 
Congress,  pursuant  to  the  recommendations  of  1783, 
but  upon  the  condition  that  it  should  not  be  in  force 
until  all  the  States  had  granted  it  in  the  same  man- 
ner. The  State  of  New  York  passed  an  act,-^  reserv- 
ing to  itself  the  sole  power  of  levying  and  collect- 
ing the  impost;  making  the  collectors  amenable  to 
and  removable  by  the  State,  and  not  by  Congress ; 
and  making  the  duties  receivable  m  specie  or  bills 
of  credit,  at  the  option  of  the  importer.  Such  a  de- 
parture from  the  plan  suggested  by  Congress,  and 
adopted  by  the  other  States,  of  coiu'se  made  the 
Avhole  system  inoperative  in  the  other  States,  and 
there  remained  no  possibility  of  procuring  its  adop- 
tion, but  by  inducmg  the  State  of  New  York  to  re- 
consider its  determination.  All  hope  of  meeting  the 
public  engagements,  and  of  carrying  on  the  govern- 
ment, now  turned  upon  the  action  of  a  single  State. 

The  principal  argument  made  use  of,  by  those  who 

their  collection,  and  so  evidently  the    indispensable    obligation  that 

unproductive,   that  a   reliance   on  Congress  are  under,  of  representing 

them   in   future  as  a  source  from  to  the  immediate  and  impartial  con- 

whencc  moneys  are  to  be  drawn  to  sideration  of  the  several  States  the 

discharge  the  engagements  of  the  utter  impossibility  of  maintaining 

Confederacy,  definite  as   they  are  and   preserving   the    faith   of   the 

in  time  and  amount,  would  be  not  federal    government  by  temporary 

less  dishonorable  to  the  understand-  requisitions  on  the  States,  and  the 

ings  of  those  v/ho  entertain  such  consequent   necessity  of  an   early 

confidence,  than  it  would  be  dan-  and  complete  accession  of  all  the 

gerous  to  the  welfare  and  peace  of  States  to  the  revenue  system  of  the 

the   Union.      Tlie   committee   are  18th  of  April,  1783." 

therefore  seriously  impressed  with  ^  May  4,  1786. 


ch.  l]  the  conpedeeation.  247 

supported  the  conduct  of  New  York,  was,  that  Con- 
gress, being  a  smgle  body,  might  misapply  the  money 
arising  from  the  duties.  An  answer  to  this  pretence, 
from  the  pen  of  Hamilton,  declared  that  the  mterests 
and  liberties  of  the  people  were  not  less  safe  in  the 
hands  of  those  whom  they  had  delegated  to  represent 
them  for  one  year  in  Congress,  than  they  were  in  the 
hands  of  those  whom  they  had  delegated  to  represent 
them  for  one  or  four  years  in  the  legislature  of  the 
State;  that  all  government  implies  trust,  and  that 
every  government  must  be  trusted  so  far  as  it  is  ne- 
cessary to  enable  it  to  attain  the  ends  for  which  it  is 
instituted,  without  which  insult  and  oppression  from 
abroad,  and  confusion  and  convulsion  at  home,  must 
ensue.-"^  The  real  motive,  however,  mth  those  who 
ruled  the  comisels  of  New  York  at  this  period,  was  a 
hope  of  the  commercial  aggrandizement  of  the  State ; 
and  the  jealousies  and  fears  of  national  power,  which 
were  widely  prevalent,  were  diligently  employed  to 
defeat  the  system  proposed  by  Congress. 

After  the  passage  of  the  act  of  New^  York,  and  the 
adjournment  of  the  legislature.  Congress  earnestly 
recommended  to  the  executive  of  that  State  to  con- 
vene the  legislature  again,  to  take  hito  its  considera- 
tion the  recommendation  of  the  revenue  system,  for 
the  purpose  of  granting  the  impost  to  the  United 
States,  in  conformity  with  the  grants  of  other  States, 
so  as  to  enable  the  United  States  to  carry  it  into  im- 
mediate effect.^     The  Governor  declined  to  accede  to 

1  Life  of  Hamilton,  II.  385.  -  August  11,  1766. 


248 


THE  FEDERAL  CONSTITUTION. 


[Book  III 


this  recommendation.^  Congress  repeated  it,  declar- 
ing that  the  critical  and  embarrassed  state  of  the 
finances  required  that  the  impost  should  be  carried 
into  immediate  operation,  and  expressing  their  opin- 
ion, that  the  occasion  was  sufficiently  important  and 
extraordinary  for  them  to  request  that  the  legislature 
shoidd  be  specially  convened.^  The  executive  of 
New  York  again  refused  the  request  of  Congress, 
and  the  fate  of  the  impost  system  remained  suspended 
until  the  meeting  of  the  legislature,  at  its  regular 
session  m  January,  1787.  It  was  never  adopted 
by  that  State,  and  consequently  never  took  effect. 


'  The  ground  of  his  refusal  was, 
*'  that  he  had  not  the  power  to  con- 
vene the  legislature  before  the  time 
fixed  by  law  for  their  stated  meet- 
ing, except  upon  '  cxtraordinarij 
occasions,''  and  as  the  present  busi- 
ness had  already  been  particularly 


laid  before  them,  and  so  recently 
as  at  their  last  session  received 
their  determination,  it  cannot  come 
within  that  description."  Lif«»  of 
Hamilton,  II.  389. 
2  August  23,  1786. 


GHAPTEH  II. 

1784-1787. 
Infractions  of  the  Treaty  of  Peace. 

The  Treaty  of  Peace,  ratified  on  the  14th  of  Janu- 
ary, 1784,  contahied  provisions  of  great  practical  and 
immediate  importance.  One  of  its  chief  objects,  on 
the  part  of  the  United  States,  was,  of  course,  to  efifect 
the  immediate  withdrawal  of  the  British  troops,  and 
of  every  sign  of  British  authority,  from  the  country 
whose  independence  it  acknowledged.  A  stipula- 
tion was  accordingly  introduced,  by  which  the  Kmg 
bound  himself,  mth  all  convenient  speed,  and  mth- 
out  causing  any  destruction,  or  carrying  away  any 
negroes  or  other  property  of  the  American  inhabit- 
ants, to  withdraw  all  his  armies,  garrisons,  and  fleets 
from  the  United  States,  and  from  every  post,  place, 
and  harbor  withm  the  same.  Although  the  ratifica- 
tion of  the  Treaty  was  followed  by  the  departure  of 
the  British  forces  from  the  Atlantic  coast,  many  im- 
portant posts  in  the  AVestern  country,  within  the  in- 
contestable limits  of  the  United  States,  with  a  consider- 
able territory  around  each  of  them,  were  still  retained.* 


1  Secret  Journals  of  Congress,  IV.  186,  187. 
32 


250  THE  FEDERAL  CONSTITUTION.  [Book  IIL 

On  the  part  of  England,  it  was  of  great  conse- 
quence to  secure  to  British  subjects  the  property,  and 
rights  of  property,  of  the  enjoyment  of  which  the 
state  of  hostilities  had  deprived  them.  A  war  be- 
tween colonies  and  the  parent  state,  which  had  sun- 
dered the  closest  intimacies  of  social  and  commercial 
intercourse,  involved  of  necessity  vast  private  inter- 
ests. There  were  two  large  classes  of  English  cred- 
itors, whose  mterests  required  protection ;  the  Brit- 
ish merchants  to  whom  debts  had  been  contracted 
before  the  Revolution,  and  the  Tories,  who  had  been 
obliged  to  depart  from  the  United  States,  leaving 
debts  due  to  them,  and  landed  property,  which  had 
been  seized.  Clear  and  explicit  stipulations  were 
inserted  hi  the  Treaty,  in  order  to  protect  these  mter- 
ests. It  was  provided  that  creditors  on  either  side 
should  meet  with  no  lawful  impediments  to  the  re- 
covery of  the  full  value  in  sterling  money  of  all  bona 
fide  debts  contracted  before  the  date  of  the  Treaty.^ 
It  was  also  agreed,  that  Congress  should  earnestly 
recommend  to  the  legislatures  of  the  respective  States 
to  provide  for  the  restitution  of  all  estates,  rights, 
and  properties,  which  had  been  confiscated,  belong- 
ing to  real  British  subjects,  and  to  persons  resident 
in  districts  in  the  possession  of  his  Majesty's  arms, 
and  who  had  not  borne  arms  against  the  United 
States ;  that  persons  of  any  other  description  should 
have  free  liberty  to  go  into  any  of  the  States,  and 
remain  for  the  period  of  twelve  months  unmolested 

1  Article  IV. 


Cjj.  II.]  THE  COKFEDERATION.  251 

in  their  endeavors  to  obtain  the  restitution  of  their 
property  and  rights  which  had  been  cbnfiscated ;  that 
Congress  should  recommend  to  the  States  a  recon- 
sideration and  revision  of  all  their  confiscation  laws, 
and  a  restoration  of  the  rights  and  property  of  the 
last-mentioned  persons,  on  their  refunding  the  bona 
fide  price  which  any  purchaser  might  have  given  for 
them  since  the  confiscation.  It  was  also  agreed,  that 
all  persons  having  any  interest  in  confiscated  lands, 
either  by  debts,  marriage  settlements,  or  otherwise, 
should  meet  with  no  lawful  impedunent  in  the  prose- 
cution of  their  just  rights.^ 

It  was  further  provided,  that  there  should  be  no 
future  confiscations  made,  nor  any  prosecutions  com- 
menced against  any  person  on  account  of  the  part  he 
might  have  taken  in  the  war,  and  that  no  person 
should,  on  that  account,  suffer  any  future  loss  or 
damage,  either  in  person,  liberty,  or  property,  and 
that  those  who  might  be  in  confinement  on  such 
charges,  at  the  time  of  the  ratification  of  the  Treaty 
in  America,  should  be  immediately  set  at  liberty,  and 
the  prosecutions  be  discontinued.^ 

These  provisions  related  to  a  great  subject,  with 
which,  i^  the  existing  political  system  of  this  coun- 
try, it  was  difficult  to  deal.  The  action  of  the  States, 
^vith  regard  to  some  of  the  uiterests  involved  in  these 
stipulations,  had  been  irregidar  from  an  early  period 
of  the  war.  The  Revolutionary  Congress,  on  the 
commencement  of  hostilities,  had  suffered  the  oppor- 

1  Article  V.  2  Article  VI. 


252  THE  PEDEEAL  CONSTITUTION.  [Book  III. 

tunity  of  asserting  their  rightful  control  over  the 
subject  of  alien  interests,  except  as  to  property  found 
on  the  high  seas,  to  pass  away ;  and  the  consequence 
was,  that  the  States  had,  on  some  pomts,  usurped  an 
authority  which  belonged  to  the  Union.  A  Union, 
founded  in  compact,  and  vesting  the  rights  of  war 
and  peace  in  Congress,  was  formed  in  1775  ;  and 
from  that  time  the  Colonies,  or,  as  they  afterwards 
became,  States,  were  never  rightfully  capable  of  pass- 
ing laws  to  sequester  or  confiscate  the  debts  or  prop- 
erty of  a  national  enemy .^  After  the  great  acts  of 
national  sovereignty  which  took  place  in  1775-6,  a 
British  subject  could  not,  with,  any  propriety,  be  con- 
sidered as  the  enemy  of  Massachusetts,  or  of  Vir- 
giuia ;  he  was  the  enemy  of  the  United  States,  and 
by  that  authority  alone,  as  the  belligerent,  was  his 
property,  in  strictness,  liable  to  be  seized,  or  the  debts 
due  to  him  sequestered.  But  neither  the  Revolution- 
ary Congress,  nor  that  of  the  Confederation,  appear 
to  have  ever  exercised  the  power  of  confiscating 
the  debts  or  property  of  British  subjects,  within  the 
States,  or  to  have  recommended  such  confiscation  to 
the  States  themselves.^  On  the  other  hand,  they  did 
not  interfere  when  the  States  saw  fit  to  do  it. 

With  regard  to  those  inhabitants  of  the  States  who, 
adhering  to  the  British  cro\vn,  had  abandoned  the 
country,  and  left  property  behind  them,  it  cannot  so 
clearly  be  affirmed  that  the  States  should  not  ]iave 

1  See  the  Report  made  to  Con-       tober,  1786.     Secret  Journals.  IV. 
grass  on  this  subject  by  Mr.  Jay,      209. 
Secretary  of  Foreign  Affairs,  Oc-  -  Ibid. 


Ch.  II.]  THE   CONFEDEKATION.  253 

dealt  with  their  persons  or  property.  Congress,  as 
we  have  seen,  at  an  early  period  of  the  war,  commit- 
ted the  whole  subject  of  restrammg  the  persons  of 
the  Tories  to  the  Colonies  or  States ;  and  as  Congress 
never  assumed  or  exercised  any  jurisdiction  over 
their  property,  it  was  of  course  left  to  be  dealt  with 
by  the  legislatures  of  the  States,  to  whom  Congress 
had  declared  that  theii-  several  inhabitants  owed 
allegiance.^  But  as  these  persons,  by  adhering  to 
the  crown,  might  claim  of  the  crow^i  the  rights 
and  protection  of  British  subjects,  the  propriety  of 
confiscatmg  or  withholding  their  property  would  re- 
main for  solution,  at  the  negotiation  of  the  Treaty  of 
Peace,  as  a  question  of  general  justice  and  equity, 
rather  than  of  public  law. 

The  interests  of  both  of  these  classes  of  persons 
were  too  important  to  be  overlooked.  Three  mil- 
lions sterlmg  were  due  from  the  inhabitants  of  the 
Colonies  to  merchants  in  Great  Britain,  at  the  com- 
mencement of  the  war.  At  the  return  of  peace,  the 
laws  of  five  of  the  States  were  found  either  to  pro- 
hibit the  recovery  of  the  principal,  or  to  suspend  its 
collection,  or  to  prohibit  the  recovery  of  interest,  or 
to  make  land  a  good  payment  in  place  of  money .^ 

1  Resolve    of   June    24,    1776.  the  State  of  New  York,  of  Jul/ 

Journals,  IT.  216.  Ante,  p.  52,  note.  12,  1782,  restrained  the  collection 

"  An  act  passed  by  the  legisla-  of  debts  due  to  persons  within  the 
ture  of  Massachusetts,  November  enemy's  lines.  Pennsylvania,  soon 
9,  178-1,  suspended  judgment  for  after  the  peace,  passed  a  law  re- 
interest  on  British  debts,  until  straining  the  levy  of  executions. 
Congress  should  have  put  a  con-  Virginia,  at  the  time  of  the  peace, 
struction  upon  the  Treaty  declar-  had  existing  laws  inhibiting  the 
ing  that  it  was  due.     An  act  of  recovery  of  British  debts.     Soutli 


254  THE   FEDERAL   CONSTITUTION.  [Book  HI. 

The  purpose  of  the  Treaty  was  to  declare,  that  all 
bona  jide  debts,  contracted  before  the  date  of  the 
Treaty,  and  due  to  citizens  of  either  country,  re- 
mained unextinguished  by  the  war ;  and  consequent- 
ly, that  interest,  when  agreed  to  be  paid,  or  payable 
by  the  custom,  or  demandable  as  damages  for  delay 
of  papnent,  was  justly  due.  Over  this  whole  subject 
of  foreign  debts,  the  national  sovereignty,  of  right, 
had  exclusive  control ;  for  confiscation  of  the  prop- 
erty of  a  national  enemy  belongs  exclusively  to  the 
power  exercismg  the  rights  of  w^ar;  and  therefore 
whatever  State  laws  might  have  been  passed  durmg 
the  war,  exercising  rights  w^hich  belonged  to  the  na- 
tional sovereign,  they  could  have  no  validity  when 
that  sovereign  came  to  resume  its  control  over  the 
subject,  and  to  stipulate  that  the  right  of  confiscation, 
if  it  ever  existed,  should  not  be  exercised.  The  State 
laws,  however,  existed,  and  remained  in  conflict  with 
the  Treaty,  for  several  years,  producing  consequences 
to  which  we  shall  presently  advert. 

The  fifth  article  of  the  Treaty  was  infringed  by  an 
act  passed  by  the  State  of  New  York,  authorizing 
actions  for  rent  to  be  brought  by  persons  who  had 
been  compelled  to  leave  their  lands  and  houses  by 
the  enemy,  agamst  those  Avho  had  occupied  them 
while  the  enemy  were  in  possession,  and  declaring 
that  no  military  order  or  command  of  the  enemy 
should  be  pleaded  in  justification  of  such  occupation.^ 

Carolina   had   made   land   a   good  '  Passed  March  17,  1783.     Se- 

payment,  in  place  of  money,     (See      cret  Journals,  IV.  267. 
Mr.  Jay's  Report.) 


Cn.  n.]  THE   CONFEDERATION.  255 

The  sixth  article  was  also  violated  by  an  act  of  the 
same  State,  which  made  those  inhabitants  who  had 
adhered  to  the  enemy,  if  found  within  the  State, 
guilty  of  misprision  of  treason,  and  rendered  them 
incapable  of  holding  office,  or  of  voting  at  elections.^ 

The  powers  of  the  government  were  entu*ely  inade- 
quate to  meet  this  state  of  things.  The  Confedera- 
tion gave  to  the  United  States  in  Congress  assembled 
the  sole  and  exclusive  right  of  detennining  on  peace 
and  war,  and  of  entering  into  treaties  and  alliances. 
The  nature  of  the  sovereignty  thus  established  made 
a  treaty  the  law  of  the  land,  and  bmding  upon  every 
member  of  the  Union;  but  there  existed  no  means 
of  enforcmg  the  obligation.  If  the  legislatures  of 
the  States  passed  laws  restraining  or  interfermg  with 
the  provisions  of  a  treaty,  Congress  could  only  de- 
clare that  they  ought  to  be,  and  recommend  that 
they  should  be,  repealed.  The  simple  and  effectual 
intervention  of  a  national  judiciary,  clothed  with  the 
power  of  declaring  void  any  State  legislation  that 
conflicted  mth  the  national  sovereignty,  and  of  giv- 
ing the  means  of  enforcing  all  rights  which  that  sov- 
ereignty had  guaranteed  by  compact  with  a  foreign 
power,  did  not  exist.  Resort,  it  is  true,  coidd  be 
had  to  the  State  tribunals ;  and,  on  one  memorable 
occasion,  such  resort  was  had  to  them  "svith  success. 
But  the  legislative  power  assailed  the  independence 
of  the  judiciary,  and  indignantly  declared  a  decision, 
made  Avith  fairness  by  a  competent  tribunal,  subver- 

1  Passed  May  12,  1784,  after  the  Treaty  had  been  ratified.     Secret 
lournals,  IV.  2G9-274. 


256  THE  FEDEEAL  CONSTITUTION.  [Book  III 

sive  of  law  and  good  order,  because  it  recognized  the 
paramount  authority  of  a  treaty  over  a  statute  of  the 
State.^ 

The  effect  of  such  State  legislation  upon  the  rela 
tions  of  the  two  countries  was  direct  and  mischievous. 
The  Treaty  of  Peace  was  designed,  and  was  adapted, 
to  produce  a  fair  and  speedy  adjustment  of  those  re- 
lations, upon  prmciples  of  equity  and  justice.  But 
its  obligations  were  reciprocal,  and  it  could  not  exe- 
cute itself  It  was  made,  on  the  one  side,  by  a  power 
capable  of  performing,  but  also  capable  of  waiting  for 
the  performance  of  the  obligations  wliich  rested  upon 
the  other  contracting  party.  On  the  other  side,  it 
was  made  by  a  power  possessed  of  very  imperfect 
means  of  performance,  yet  standing  in  constant  need 
of  the  benefit  which  a  full  compliance  with  its  obli- 
gations would  insure.  After  the  lapse  of  three  years 
from  the  signature  of  the  prelimmary  articles,  and  of 
more  than  two  years  from  that  of  the  definitive  Treaty, 
the  military  posts  in  the  Western  country  were  still 
neld  by  British  garrisons,  avowedly  on  account  of  the 
infractions  of  the  Treaty  on  our  part.     The  Minister 

^  This  happened  in  New  York,  tained  his  position.     But  the  legis- 

m   a   case   under    the   "  Trespass  lature   passed    resolves,   declaring 

Act,"  where  a  suit  was  brouglit  in  the  decision  to  be  subversive  of  law 

the  Mayor's  Court  of  the  City  of  and  good  order,  and  recommending 

New  York,  "  to  recover  the  rents  the  appointing  power  "  to  appoint 

of  property  held  by  the  defendant  such  persons  Mayor  and  Recorder 

under  an  order  of  Sir  Henry  Clin-  of  New  York  as  will  govern  them- 

ton.     Hamilton,  in  the  defence  of  selves  by  the   known  law  of  the 

this    case,    contended,  with   great  land."      Life    of    Hamilton,    II. 

power,  that  the  act  was  a  violation  211,  215. 
of  the  Trcatv,  and  the  court  sus- 


Cn.  II.]  THE   COKFEDERATIOK  257 

of  the  United  States  at  St.  James's  was  told,  in  an- 
swer to  his  complaints,  that  one  party  could  not  be 
obliged  to  a  strict  observance  of  the  engagements  of 
a  treaty,  and  the  other  remain  free  to  deviate  from  its 
obligations ;  and  that  whenever  the  United  States 
should  manifest  a  real  determination  to  fidfil  their 
part  of  the  Treaty,  Great  Britain  would  be  ready  to 
carry  every  article  of  it  into  complete  effect.^  An 
investigation  of  the  whole  subject,  therefore,  became 
necessary,  and  Congress  directed  the  Secretary  of 
Foreign  Affairs  to  make  inquiry  mto  the  precise 
state  of  thmgs.  His  report  ascertained  that  the 
fourth  and  fifth  articles  of  the  Treaty  had  been  con- 
stantly violated  on  our  part  by  legislative  acts  still  in 
existence  and  operation ;  that  on  the  part  of  Eng- 
land, the  seventh  article  had  been  violated,  by  her 
contmuing  to  hold  the  posts  from  which  she  had 
agreed  to  "withdraw  her  garrisons,  and  by  carrjdng 
away  a  considerable  body  of  negroes,  the  property  of 
American  inhabitants,  at  the  time  of  the  evacuation 
of  New  York.2 

The  serious  question  recurred,  —  what  was  to  be 
done?  The  United  States  had  neither  committed 
nor  approved  of  any  violation  of  the  Treaty ;  but  an 
appeal  was  made  to  their  justice,  relative  to  the  con- 
duct of  particular  States,  for  which  they  were  obliged 


1  Mr.  John  Adams  was  sent  as  the  British  government,  on  the  sub- 

the   first   Minister   of  the    United  jccl  of  the  Western  posts,  in  Feb- 

States  to  the  Court  of  St.  James's  ruary,  1786.     Secret  Journals,  IV 

in  1785.    He  received  this  reply  to  187. 
a  memorial  which  he  addressed  to  ^  Secret  Journals,  IV.  209 

VOL.  I.  33 


'258  THE  FEDERAL   CONSTITUTION.  [Book  III 

eventually  to  answer.  They  could  only  resolve  and 
recommend ;  and  accordingly,  after  having  declared 
that  the  legislatures  of  the  States  could  not,  of  right, 
do  any  thing  to  explain,  interpret,  or  limit  the  opera- 
tion of  a  treaty,  Congress  recommended  to  the  States 
to  pass  a  general  law,  repealing  all  their  former  acts 
that  might  be  repugnant  to  the  Treaty,  and  leaving 
to  their  courts  of  justice  to  decide  causes  that  might 
arise  under  it,  according  to  its  true  intent  and  mean- 
ing, by  determinmg  what  acts  contravened  its  pro- 
visions.^ This  recommendation  manifestly  left  the 
interests  of  the  Union  exposed  to  two  hazards ;  the 
one,  that  the  legislatures  of  the  States  might  not  pass 
the  repealing  statute,  which  would  submit  the  proper 
questions  to  their  courts,  and  the  other,  that  their 
courts  might  not  decide  with  firmness  and  impar- 
tiality between  the  policy  of  the  State,  on  the  one 
hand,  and  the  mterests  of  foreigners  and  obnoxious 
Tories,  on  the  other. 

But  this  was  all  that  could  be  done,  and  partial 
success  only  followed  the  effort.  Most  of  the  States 
passed  acts,  in  compliance  with  the  recommendation 
of  Congress,  to  repeal  their  laws  which  prevented 
the  recovery  of  British  debts.^  But  the  State  of  Vir- 
ginia, although  it  passed  such  an  act,  suspended  its 
operation,  until  the  Governor  of  the  State  should 
issue  a  proclamation,  giving  notice  that  Great  Brit- 
ain had  delivered  up  the  Western  posts,  and   was 

1  March  21,  1787.  T/claware,  Maryland,  Virginia,  and 

2  New    Hampshire,    Massachu-       iVorth  Carolina  passed  such  a''^ 
eetts,   Rhode   Island,   ('onnecticut. 


Oh.  ii.j  the  confederation.  259 

taking  measures  for  the  further  fulfilment  of  the 
Treaty,  by  delivering  up  the  negroes  belonging  tc 
the  citizens  of  that  State,  which  had  been  carried 
away,  or  by  maldng  compensation  for  their  value.* 
The  two  countries  were  thus  brought  to  a  stand,  in 
their  efforts  to  adjust  the  matters  in  dispute,  and  the 
Western  posts  remained  in  the  occupation  of  British 
garrisons,  mfiaming  the  hostile  temper  of  the  Indian 
tribes,  and  enhancing  the  difficulty  of  settling  the 
vacant  lands  in  the  fertile  region  of  the  Great  Lakes.^ 

'  Pitkin's  History  of  the  United  ~  Marshall's  Life  of  Washing- 

States,  II.  198.        "  ton,  V.  67,  68. 


OHAPTEH  III. 

1786-1787. 
No  Security  afforded  by  the  Confederation  to  the  State  Gzv 

ERNMENTS. ShAYS's    REBELLION    IN    MASSACHUSETTS,    AND    ITS   KiN 

DRED  Disturbances. 

No  federative  government  can  be  of  great  perma 
nent  value,  which  is  not  so  constructed  that  it  may 
stand,  in  some  measure,  as  the  common  sovereign  of 
its  members,  able  to  protect  them  against  internal 
disorders,  as  well  as  against  external  assaults.  Tho 
Confederation  undertook  but  one  of  these  great  du- 
ties. It  was  formed  at  a  time  when  the  war  -svith 
England  was  the  great  object  of  concern  to  the  re- 
volted Colonies,  and  when  they  felt  only  the  exigen- 
cies which  that  war  created.  Hence  its  most  impor 
tant  powers,  as  well  as  its  leadmg  purpose,  concerned 
the  common  cause  of  resistance  to  a  foreign  domina- 
tion. A  federal  league  of  States  independent  of  each 
other,  formed  principally  for  mutual  defence  against 
a  common  enemy,  was  all  that  succeeded  to  the  gen- 
eral superintending  power  of  the  British  crown,  by 
which  the  internal  affairs  of  cacli  of  them  had  al- 
ways been  regulated  and  controlled,  in  the  last  re- 
sort.    When  the  tie  was  broken  by  ^^'hich  they  had 


Ch.  m.]  THE   CONFEDERATION.  261 

been  held  to  the  parent  state,  each  of  them  created 
for  itself  a  new  government,  resting  for  its  basis  on 
the  popular  ■svill,  and  deriving  its  authority  dii'ectly 
from  the  people ;  but  none  of  them  provided  for  the 
creation  of  a  power,  external  to  itself,  which  might 
stand  as  the  guarantor  and  protector  of  their  new  in- 
stitutions, and  secure  the  principles  on  which  they 
rested  against  violence  and  overthrow.  Yet  the  con- 
stitutions thus  formed,  from  their  peculiar  nature, 
eminently  needed  the  safeguards  which  such  a  power 
could  afford. 

These  constitutions  were  admirably  constructed. 
They  contained  principles  imperfectly  known  to  the 
ancient  governments ;  found  in  modern  times  only  in 
the  government  of  England ;  and  applied  there  mth 
far  less  consistency  and  completeness.  They  em- 
braced the  regular  distribution  of  political  power 
into  distinct  departments ;  legislative  checks  and_ 
balances,  by  means  of  two  coordinate  branches  of 
the  legislature  ;  a  judiciary  in  general  holding  office 
during  good  behaviour;  and  the  representation  of 
the  people  m  the  legislature,  by  deputies  of  their 
ovra  actual  election,  in  wliich  the  theory  of  such  rep- 
resentation was  more  perfectly  carried  uito  practice 
than  it  had  ever  been  in  the  country  from  which  it 
was  derived.  But  the  fundamental  principle  on 
which  they  all  rested,  and  without  which  they  could 
not  maintain  existence,  required  means  of  defence. 
They  were  established  upon  the  great  doctrine,  that 
it  is  the  right  of  eveiy  political  society  to  govern 
itself,  and  for  the  purposes  of  such  self-government, 


262  THE  FEDERAL  CONSTITUTION.  [Book  IU, 

to  create  such  constitutions  and  ordain  such  funda- 
mental laws  as  its  own  judgment  and  its  ov^n  intelli- 
gent choice  may  find  best  suited  to  its  own  interests. 
But  society  can  act  only  by  an  expression  of  the 
aggregate  will  of  its  members ;  and  as  there  may  be 
members  who  dissent  from  the  views  and  determina- 
tions of  the  great  mass  of  society,  and  it  is  therefore 
necessary  to  decide  mth  whom  the  power  of  compel- 
ling obedience  resides,  —  since  there  must  be  obe- 
dience in  order  that  there  may  be  peace,  —  nature 
and  reason  have  determined  that  this  power  is  to 
reside  with  a  majority  of  the  members.  The  Ameri- 
can constitutions,  therefore,  are  founded  wholly  upon 
the  principle,  that  a  majority  expresses  the  will  of 
the  whole  society,  and  may  establish,  change,  and 
abrogate  forms  of  government  at  its  pleasure.^  It 
follows,  as  a  necessary  deduction  from  this  funda- 
mental doctrine,  that  so  soon  as  society  has  acted  in 
the  formation  and  establishment  of  a  government, 
upon  this  principle,  no  change  can  take  place,  but 

1  Gibbon,    with    that    graceful  in  the  constitutional  organs  of  their 

satire  which  knew  how  to  hit  two  own   will,   has   had   a   fair   trial, 

objects  with  the  same  stroke  of  his  We  may  not  say  that  its  trial  is 

pen,  describes  hereditary  monarchy  past,  or  that  the  system  is  estab- 

as  "an  expedient  which  deprives  lished    beyond   the   possibility   of 

the  multitude  of  the  dangerous,  and  further    dangers.      But    we    may 

indeed  the  ideal,  power  of  giving  with  a  just  pride  point  to  its  es- 

themselves  a  master."     The  his-  cape,  in  the  days  of  its  first  estab- 

torian  of  the  Decline  and  Fall  be-  lishment  and  greatest  danger,  and 

gan  to  publish  his  great  work,  just  to  the  securities  which  the  Consti- 

as  the  American  Revolution  burst  tution  of  the  United  States  now 

upon  the  world.     Since  that  sen-  affords,  against  similar  perils,  when 

tence  was  penned,  the  experiment  they  threaten  the  constitutions  of 

of  a  system,  by  which  the  niulti-  the  States, 
tudo  give  to  themselves  a  master, 


Ch.  ui.]  the  confederation.  263 

by  a  new  expression  of  the  will  of  society  through 
the  voice  of  a  majority ;  and  whether  a  majority  de- 
sires or  has  actually  decreed  a  change,  is  a  fact  that 
must  be  made  certain,  and  can  only  be  made  certam 
in  one  of  two  modes,  —  either  by  the  evidence  and 
through  the  channels  which  the  society  has  previous- 
ly ordamed  for  this  purpose,  or  by  the  submission  of 
all  its  members  to  a  violent  and  successful  revolu- 
tion. 

The  first  constitution  of  Massachusetts  did  not 
designate  any  mode  in  which  it  was  to  be  amended 
or  changed.  But  no  peaceable  change  can  take 
place  hi  any  government  founded  on  the  expressed 
will  of  a  majority  of  the  people,  consistently  with 
the  principle  on  wdiich  it  had  been  established,  until 
it  has  been  ascertamed,  in  some  mode,  that  a  change 
is  demanded  by  the  same  authority.  The  vital  im- 
portance of  ascertaining  this  fact  with  precision  was 
not  so  clearly  perceived,  at  that  early  period,  as  it  is 
now. 

Seizing  upon  the  newly  established  doctrine,  which 
made  them  the  sources  of  all  political  power,  the 
people  did  not  at  once  apprehend  the  rule  which 
preserves  and  upholds  that  power,  and  makes  the 
doctrine  itself  both  practicable  and  safe.  Hence, 
when  troubles  arose,  individuals  were  led  to  suppose 
that  they  had  only  to  declare  a  grievance,  to  demand 
a  change,  and  to  compel  a  compliance  vdih  theh  de- 
mand by  force.  So  far  as  they  reasoned  at  all,  they 
persuaded  themselves  that,  as  their  government  was 
the  creation  of  the  people,  by  their  ovra  direct  act. 


264  THE  FEDERAL  CONSTITUTION.  [Book  UI. 

bodies  of  the  people  could  assemble  in  their  primar}' 
capacity,  and,  by  obstructing  any  of  its  functions 
which  they  connected  with  a  particular  grievance, 
produce  a  reform,  which  the  people  have  always  a 
right  to  make.  By  overlooking,  in  this  manner,  the 
only  safe  and  legitimate  mode  in  which  the  popular 
will  can  be  really  ascertamed,  they  passed  into  the 
mischiefs  of  anarchy  and  rebellion,  mistaking  the 
voices  of  a  minority  for  the  ascertained  will  of  society. 
To  these  tendencies,  the  recently  established  gov- 
ernments of  New  England,  where  the  spirit  of  liberty 
was  most  vigorous,  could  oppose  no  efficient  check ; 
while,  in  any  open  outbreak,  they  were  without  any 
external  defender,  on  whose  power  they  could  lean. 
The  Confederation  succeeded  to  the  Revolutionary 
Congress,  as  we  have  more  than  once  had  occasion 
to  observe,  with  less  power  than  its  predecessor  might 
have  exercised.  It  was  formed  by  a  written  consti- 
tution, yet  it  was,  strictly  speaking,  scarcely  a  gov- 
ernment. It  was  a  close  union  of  the  States  ;  but  it 
was  a  union  from  which  all  powers  had  been  jeal- 
ously withheld  which  would  have  enabled  it  to  inter- 
fere with  vigor  and  success  between  an  insurgent 
minority  of  the  people  of  a  State  and  its  lawful 
rulers.  The  Revolutionary  Congress  was  once  pos- 
sessed of  such  large,  indefinite  powers,  that,  upon 
principles  of  public  necessity,  it  might  have  assumed, 
in  a  great  emergency,  to  hold  a  direct  relation  to 
the  internal  concerns  of  any  Colony.  It  was,  in 
fact,  looked  to,  in  some  degree,  for  direction  in  the 
formation   of  the   State   governments,   after   it   had 


C,j   in.i  THE    CONFEDERATION.  265 

broken  the  bonds  of  colonial  allegiance  to  the  Eng- 
lish crown ;  and  it  might  very  properly  have  under- 
taken to  support  the  governments  whose  establish- 
ment it  had  recommended.  But  such  a  relation 
between  the  early  States  and  the  continental  pow- 
er, though  it  certainly  existed  in  1776,  was  soon 
lost  in  the  independent  and  jealous  attitude  which 
they  began  to  occupy,  and  the  Union  rapidly  assumed 
a  position,  Avhere  the  character  of  sovereignty  which 
it  appeared  to  wear  when  it  promulgated  the  Decla- 
ration of  Independence  was  scarcely  to  be  discerned. 
At  no  period  in  the  history  of  the  Confederation  did 
it  act  upon  the  internal  concerns  or  condition  of  a 
State.  Its  written  articles  of  union  hardly  admitted 
of  a  construction  which  would  have  enabled  it  to  do 
so,  and  certainly  contained  no  express  delegation  of 
such  a  power. 

At  the  same  time,  some  of  the  State  governments, 
during  the  period  of  which  we  are  treating,  were  sin- 
gularly exposed  to  the  dangers  of  anarchy.  None  of 
them  had  any  standuig  forces  of  any  consequence, 
three  years  after  the  peace,  and  the  New  England 
States  had  no  military  forces  whatever  but  their  mili- 
tia. No  State  could  call  upon  its  neighbors  for  aid 
in  quelling  an  msurrection,  for  their  militia  would 
not  have  obeyed  the  summons,  if  it  had  been  issued ; 
and  no  State  could  call  upon  the  federal  govern- 
ment, in  such  an  emergency,  mth  any  certamty 
of  success  in  the  application.^ 

1  A  power  to  interfere  in  the  in-      only  have  been  exercised  by  a  broad 
ternal   concerns  of  a  State   could      construction  of  the  third  of  the  Ar- 
voL.  I.  34 


266 


THE  FEDERiiL   CONSTITUTION.  [Book  IH. 


Ill  siicli  a  state  of  things,  the  year  1786  witnessed 
an  insurrection  m  Massachusetts  of  a  very  clangerou? 
character,  which,  from  the  fortunate  circumstance 
that  her  counsels  were  then  guided  by  a  man  of  sin 
gular  energy  and  firmness  of  character,  she  was  just 
able  to  subdue.  The  remote  causes  of  this  insurrec- 
tion lie  too  far  from  the  path  of  our  main  subject  to 
be  more  than  summarily  stated. 
^  At  the  close  of  the  Revolutionary  war,  the  State 
of  Massachusetts  was  oppressed  with  an  enormous 
debt.  At  the  breaking  out  of  that  war,  the  debt  of 
the  Colony  was  less  than  one  hundred  thousand 
pounds.  The  private  debt  of  the  State,  in  the  year 
1786,   was    one    million   three    hundred    thousand 


tides  of  Confederation,  which  was 
in  these  words  :  "  The  said  States 
hereby  severally  enter  into  a  firm 
league  of  friendship  with  each 
other,  for  their  common  defence, 
the  security  of  iheir  liberties,  and 
their  mutual  and  general  welfare ; 
binding  themselves  to  assist  each 
other  against  all  force  offered  to 
or  attacks  made  upon  them,  or  any 
of  them,  on  account  of  religion, 
sovereignty,  trade,  or  any  other 
pretence  whatever."  When  this 
is  compared  with  the  clear  and  ex- 
plicit provision  in  the  Constitution, 
by  which  it  is  declared  that  "the 
United  States  shall  guarantee  to 
every  State  in  this  Union  a  repub- 
lican form  of  government,"  there 
can  be  no  wonder  that  a  doubt  was 
felt  in  the  Congress  of  1786-87 
as  to  their  powers  upon  this  sub- 
ject      It  is  true  that  the   Massa- 


chusetts delegation,  when  they  laid 
before  Congress  the  measures  which 
had  been  taken  by  the  State  gov- 
ernment to  suppress  the  insurrec- 
tion, expressed  the  confidence  of 
the  legislature  that  the  firmest  sup 
port  and  most  effectual  aid  would 
have  been  afforded  by  the  United 
States,  had  it  been  necessary,  and 
asserted  that  such  support  and  aid 
were  expressly  and  solemnly  stip 
ulated  by  the  Articles  of  Confeder 
ation.  (Journals,  XII.  20.  Marc) 
9,  1787.)  But  this  was  clearlj 
not  the  case  ;  and  it  was  not  gen 
erally  supposed  in  Congress  that 
the  power  existed  by  implication. 
All  that  was  done  by  Congress  to- 
wards raising  troops,  at  the  time 
of  the  insurrection,  was  done  for 
tlie  ostensible  purpose  of  protecting 
the  frontiers  against  an  Indian  in- 
vasion, as  we  shall  see  hereafter. 


Ch.  III.J  THE   CONFEDEKATION.  267 

pounds,  besides  two  hundred  and  fifty  thousand 
pounds  due  to  the  officers  and  soldiers  of  the  State 
line  of  the  Revolutionary  army.  The  State's  propor- 
tion of  the  federal  debt  was  not  less  than  one  million 
and  a  half  of  pounds.^  According  to  the  customary 
mode  of  taxation,  one  third  of  the  whole  debt  was  to 
be  paid  by  the  ratable  polls,  which  scarcely  ex- 
ceeded ninety  thousand.^  The  Revolution  had  made 
the  people  of  Massachusetts  familiar  with  the  great 
general  doctruies  of  liberty  and  human  rights  ;  but 
it  had  given  them  little  insight  into  the  principles 
of  revenue  and  finance,  and  little  acquaintance  with 
the  rules  of  public  economy.  No  sufficient  means, 
therefore,  to  relie^^'e  the  people  from  direct  taxation, 
by  encouraging  a  revival  of  trade  and  at  the  same 
time  drawuig  from  it  a  revenue,  were  demised  by  the 
legislature.  The  exports  of  the  State,  moreover,  had 
sufiered  a  fearful  diminution.  The  fisheries,  which 
had  been  a  fruitful  source  of  prosperity  to  the  colony, 
had  been  nearly  destroyed  by  the  war,  and  the  mar- 
kets of  the  West  Indies  and  of  Europe  were  now 
closed  to  the  products  of  this  lucrative  industry,  by 
which  wealth  had  formerly  been  drawn  from  the 
wastes  of  the  ocean.  The  State  had  scarcely  any 
other  commodity  to  exchange  for  the  precious  metals 
in  foreign  commerce.  Its  agriculture  }ielded  only  a 
scanty  support  to  its  population,  if  it  yielded  so 
much ;  its  manufactures  were  in  a  lanwuishins:  con- 
dition ;  and  its  carrying  trade  had  been  driven  from 

1  Minot's  History  of  the  Insurrection,  p.  6.  2  Jbjjj, 


268  THE  FEDERAL   CONSTITUTION.  [Book  III. 

the  seas  during  the  war,  and  was  afterwards  annihi- 
lated by  the  oppressive  policy  of  England,  which  suc- 
ceeded the  Peace.  The  people  were  every  year  grow- 
ing poorer  than  they  had  been  the  year  before,  and 
taxes,  onerous  taxes,  beyond  their  resources  and  al- 
ways odious,  were  pressing  upon  them  with  a  con- 
stantly increasing  accumulation,  from  which  the  po- 
litical state  of  the  country  seemed  to  promise  no  relief^ 
But  the  demand  of  the  tax-gatherer  was  not  the 
sole  burden  which  individuals  had  to  encounter. 
Private  debts  had  accumulated  during  the  war,  in 
almost  as  large  a  ratio  as  the  public  obligations.  The 
collection  of  such  debts  had  been  generally  suspended, 
while  the  struggle  for  political  freedom  was  going 
on  ;  but  that  struggle  being  over,  creditors  necessa- 
rily became  active,  and  were  often  obliged  to  be 
severe.  Suits  were  multiplied  in  the  courts  of  law 
beyond  all  former  precedent,  and  the  first  effect  of 
this  sudden  influx  of  litigation  was  to  bring  popular 
odium  upon  the  whole  machinery  of  justice.  In  a 
state  of  society  approachmg  so  nearly  to  a  democracy, 
the  class  of  debtors,  if  nimierous,  must  be  politically 
formidable.  They  had  begun  to  be  so  before  the 
close  of  the  war.  Their  clamors  and  the  supposed 
necessity  of  the  case  led  the  legislature,  m  1782,  to  a 
violation  of  principle,  in  a  law  kno^^ai  as  the  Tender 
Act,  by  which  executions  for  debt  might  be  satisfied 
by  certain  articles  of  property,  to  be  taken  at  an  ap- 
praisement.    This  law  was  limited  in  its  operation  to 

^  See  the  next  cliaptcr  for  some  particulars  respecting  the  trade  of 
Massachusetts. 


Ch.  m.]  THE  CONFEDERATION.  269 

one  year ;  but  in  the  course  of  that  year  it  taught 
the  debtors  their  strength,  and  gave  the  first  signal 
for  an  attack  upon  property.  A  levelluig.  licentious 
spuit,  a  restless  desii-e  for  change,  and  a  disposition 
to  throw  down  the  barriers  of  private  rights,  at  length 
broke  forth  in  conventions,  which  first  voted  them- 
selves to  be  the  people,  and  then  declared  thei^'  pro- 
ceedings to  be  constitutional.  At  these  assemblies, 
the  doctrine  was  publicly  broached,  that  property 
ought  to  be  common,  because  all  had  aided  in  saving 
it  from  confiscation  by  the  power  of  England.  Taxes 
were  voted  to  be  unnecessary  burdens,  the  courts  of 
justice  to  be  intolerable  grievances,  and  the  legal  pro 
fession  a  nuisance.  A  revision  of  the  constitution 
was  demanded,  in  order  to  abolish  the  Senate,  reform 
the  representation  in  the  House,  and  make  all  the 
civil  officers  of  the  government  eligible  by  the  people. 
A  passive  declaration  of  their  grievances  did  not, 
however^  content  the  disafi"ected  citizens  of  Massachu- 
setts. They  proceeded  to  enforce  their  demands.  The 
courts  of  justice  were  the  nearest  objects  for  attack, 
as  well  as  the  most  immediately  connected  with  the 
chief  objects  of  their  complaints.  Armed  mobs  sur- 
rounded the  court-houses  in  several  counties,  and 
sometimes  effectually  obstructed  the  sessions  of  the 
courts.  These  acts  were  repeated,  until,  in  the 
autumn  of  1786,  the  insurrection  broke  out  m  a 
formidable  manner  in  the  western  part  of  the  State. 
The  insurgents  actually  embodied,  and  in  arms 
against  the  government,  in  the  month  of  Decem- 
ber, in  the  counties  of  Worcester  and  Hampshiie, 


270  THE  FEDERaU:i  CONSTITUTION.  [Book  III. 

numbered  about  fifteen  hundred  men,  and  were 
headed  by  one  Daniel  Shays,  who  had  been  a  cap- 
tain in  the  continental  army.^ 

-  The  executive  chair  of  the  State  was  at  that  time 
filled  by  James  Bowdoin ;  a  statesman,  firm,  pru- 
dent, of  high  principle,  and  devoted  to  the  cause  of 
constitutional  order.  In  the  first  stages  of  the  dis- 
affection, he  had  been  thwarted  by  a  House  of  Rep- 
resentatives, in  which  the  majority  were  strongly 
inclmed  to  sympathize  with  the  general  spirit  of 
the  insurgents ;  but  the  Senate  had  supported  him. 
Afterwards,  when  the  movement  grew  more  danger- 
ous, the  legislatiu'e  became  more  reconciled  to  the 
use  of  vigorous  means  to  -sdndicate  the  authority  of 
the  government,  and  a  short  time  before  it  actually 
took  the  form  of  an  armed  and  organized  rebellion 
against  the  Commonwealth,  they  had  encouraged  the 
Governor  to  use  the  powers  vested  in  him  by  the 
constitution  to  enforce  obedience  to  the  laws.  The 
Executive  promptly  met  the  emergency.  A  body  of 
mihtia  was  marched  against  the  insurgents,  and  by 
the  middle  of  February  they  were  dispersed  or  cap- 
tured, with  but  little  loss  of  life. 

The  actual  resources  of  the  State,  however,  to  meet 
an  emergency  of  this  kind,  were  feeble  and  few.  A 
voluntary  loan,  from  a  few  public-spirited  individu- 
als, supplied  the  necessary  funds,  of  which  the  treas- 
ury of  the  State  was  wholly  destitute.^  At  one  time, 
so  general  was  the   prevalence   of  discontent,  even 

1  Minot's  History  of  the  Tnsur-  ^  Governor  Bowdoin's  Speech  to 

let'Lion,  p.  82  ct  seq.  the  Legislature,  Fehruary  3,  1787. 


Ch.  m.]  THE   CONPEDERATION.  271 

among  the  militia  on  whom  the  government  were 
obliged  to  rely,  that  men  were  known  openly  to 
change  sides  in  the  field,  when  the  first  bodies  of 
troops  were  called  out,-^  Had  the  government  of  the 
State  been  in  the  hands  of  a  person  less  firm  and  less 
careless  of  popularity  than  Bowdom,  it  would  have 
been  given  up  to  anarchy  and  civil  confusion.  The 
political  situation  of  the  country  did  not  seem  to 
admit  of  an  application  to  Congress  for  dkect  assist- 
ance, and  there  is  no  reason  to  suppose  that  such  an 
application  would  have  been  effectively  answered,  if 
it  had  been  made.^ 

Wlien  the  news  of  the  disturbances  in  Massachu- 
setts, in  the  autumn  of  1786,  was  received  in  Con- 
gress, it  happened  that  intelligence  from  the  Western 
country  indicated  a  hostile  disposition  on  the  part 
of  several  Indian  tribes  against  the  frontier  settle- 
ments. A  resolve  was  unanimously  adopted,  direct- 
ing one  thousand  three  hundred  and  forty  additional 
troops  to  be  raised,  for  the  term  of  three  years,  for 
the  protection  and  support  of  the  States  bordering  on 
the  Western  territory  and  the  settlements  on  and 
near  the  Mississippi,  and  to  secure  and  facilitate  the 
surveying  and  sellmg  of  the  public  lands.^  From 
the  fact  that  the  whole  of  these  troops  were  ordered 
to  be  raised  by  the  four  New  England  States,  and 

1  Minot.  of  eight,  one   being   divided,  and 

2  In  the  spring  of  178G,  tlie  State  the  delegation  from  Massachusetts 
had  asked  the  loan  from  Congress  alone  supporting  it.  Journals,  XI. 
of  sixty  pieces  of  field  artillery.  65-67.     April  19,  1786. 

The   application    was   refused,  by  ^  Journals,    XT.   258.      Octobei 

the  negative  vote  of  six  States  out      30,  1786. 


272  THE  FEDERAL   CONSTITUTION.  [Book  IH, 

one  half  of  them  by  the  State  of  Massachusetts,  and 
from  other  circumstances,  it  is  quite  apparent  that 
the  object  assigned  was  an  ostensible  one,  and  that 
Congress  intended  by  this  resolve  to  strengthen  the 
government  of  that  State  and  to  overawe  the  insur- 
gents.^ But  this  motive  could  not  be  publicly  an- 
nounced. The  enlistment  went  on  very  slowly,  how- 
ever, until  February,  when  a  motion  was  made  by 
Mr.  Pinckney  of  South  Carolina  to  stop  it  altogether, 
upon  the  ground  that  the  insurrection  m  Massachu- 
setts, the  real,  though  not  the  ostensible,  object  of 
the  resolve,  had  been  crushed.  Mr.  King  of  Massa- 
chusetts earnestly  entreated  that  the  federal  enlist- 
ments might  be  permitted  to  go  on,  otherwise  the 
greatest  alarm  would  be  felt  by  the  government  of 
the  State  and  its  friends,  and  the  insurrection  might 
be  rekindled.  Mr.  Madison  advised  that  the  pro- 
posal to  rescind  the  order  for  the  enlistments  should 
be  suspended,  to  await  the  course  of  events  in  Massa- 
chusetts. At  the  same  tune,  he  admitted  that  it  would 
be  difficult  to  reconcile  an  interference  of  Congress 
in  the  internal  controversies  of  a  State  with  the 
tenor  of  the  Articles  of  Confederation.^  The  whole 
subject  was  postponed,  and  the  dkect  question  of  the 
power  of  Congress  was  not  acted  upon.     In  the  Con- 

1  It  was  well  understood,  for  in-  to  defray  the  expenses  of  this  levy, 

stance,   in  the  legislature  of  Vir-  a   tax    on   tobacco,    which   would 

ginia,  that  this  was  the  real  pur-  scarcely  have  been  granted  for  any 

pose  ;    for  Mr.  Madison   says  that  other  purpose,  as  its  operation  was 

this  consideration  inspired  the  ardor  very   unequal.      Elliot's   Debates, 

with   which  they  voted,   towards  V.  95.     February  19,  1787. 

their  quota  of  the  funds  called  for  2  ibid. 


Ch.  m.]  THE  CONTEDERATION.  273 

vention  which  framed  the  Constitution,  it  was  very 
early  declared,  that  the  Confederation  had  neither 
constitutional  power,  nor  means,  to  interfere  in  case 
of  a  rebellion  m  any  State.-' 

This  generation  can  scarcely  depict  to  itself  the 
alarm  which  these  disturbances  spread  through  the 
country,  and  the  extreme  peril  to  which  the  Avhole 
fabric  of  society  in  New  England  was  exposed.  The 
numbers  of  the  disaffected  in  Massachusetts  amounted 
to  one  fifth  of  the  mhabitants  m  several  of  the  popu- 
lous counties.  Theu'  doctrines  and  purposes  were 
embraced  by  many  young,  active,  and  desperate  men 
in  Rhode  Island,  Connecticut,  and  New  Hampshii-e, 
and  the  whole  of  this  faction  in  the  four  States  was 
capable  of  furnishmg  a  body  of  twelve  or  fifteen  thou- 
sand men,  bent  on  annihilating  property,  and  can- 
cellmg  all  debts,  public  and  private.^ 

But  this  great  peril  was  not  mthout  beneficial 
consequences.  It  displayed,  at  a  critical  moment, 
when  a  project  of  amending  the  Federal  Constitution 
for  other  purposes  Avas  encomitering  much  opposi- 
tion, a  more  dangerous  deficiency  than  any  to  which 
the  public  mind  had  hitherto  been  turned.  "While 
thoughtful  and  considerate  men  Avere  speculating 
upon  the  causes  of  diminished  prosperity  and  the 
general  feebleness  of  the  system  of  government,  a 
gulf  suddenly  yawned  beneath  their  feet,  threatening 

1  Ibid.  127.  to  General   Washington.      See  a 

2  This  was  the  estimate  of  their  letter  from  General  Washington  to 
numbers  formed  by  General  Knox,  Mr.  Madison.     Works,  IX.  207. 
on  careful  inquiry,  and  by  him  given 

VOL.  I.  35 


274  THE  FEDERxVL  CONSTITUTION.  jBooK  III. 

ruin  to  the  whole  social  fabric.  It  was  but  a  short 
time  before,  that  the  people  of  this  country  had  shed 
their  blood  to  obtain  constitutions  of  their  own  choice 
and  making.  Now,  they  seemed  as  ready  to  over- 
turn them  as  they  had  once  been  to  extort  from 
tyranny  the  power  of  creating  and  erecting  them  in 
its  place.  It  was  manifest,  that  to  achieve  the  inde- 
pendence of  a  country  is  but  half  of  the  great  under- 
taking of  liberty ;  —  that,  after  freedom,  there  must 
come  security,  order,  the  wise  disposal  of  power,  and 
great  institutions  on  which  society  may  repose  in 
safety.  It  was  clear,  that  the  Federal  Union  alone 
could  certainly  uphold  the  liberty  which  it  had 
gained  for  the  people  of  the  States,  and  that,  to 
enable  it  to  do  so,  it  must  become  a  government.^ 

From  his  retreat  at  Mount  Vernon,  Washington 
observed  the  progress  of  these  chsorders  with  intense 
anxiety.  To  him,  they  carried  the  strongest  evi- 
dence of  a  want  of  energy  in  the  system  of  the 
Federal  Union.  They  did  more  than  all  thmgs  else 
to  convince  him  that  "  a  liberal  and  energetic  consti- 
tution, well  checked  and  well  watched  to  prevent 
encroachments,  might  restore  us  to  that  degree  of 
respectability  and  consequence  to  which  we  had  the 
fairest  prospect  of  attaining."^     He  was  kept  accu- 

1  Washington,  writing  to  Henry  the  disorders.    Influence  is  not  gov- 

Lee  in  Congress,  October  31,  1786,  ernment.     Let  us  have  a  govern- 

says  :  "  You  talk,  my  good  sir,  of  raent  by  which  our  lives,  liberties, 

employing  influence  to  appease  the  and  properties  will  be  secured,' or 

present  tumults   in  Massachusetts.  let  us  know  the  worst  at  once  * 

I  know  not  where  that  influence  is  Works,  IX.  204. 
to  be  found,  or,  if  attainable,  that  2  JbiJ.  208. 

it  would  be   a  proper  remedy  fur 


Cu.  m.J  THE   CONFEDERATION.  275 

rately  informed  of  the  state  of  things  in  New  Eng- 
land, and  the  probability  that  he  wonld  be  obliged 
to  come  forward,  and  take  an  active  part  ui  the  sup- 
port of  order  against  civil  discord,  was  directly  inti- 
mated to  hun.^  He  had  foreseen  the  possibility  of 
this  ;  but  the  successful  issue  of  the  struggle  relieved 
him  from  the  contemplation  of  this  painful  task,  and 
left  to  him  only  the  duty  of  giving  the  whole  weight 
of  his  influence  and  presence  in  the  Convention, 
which  was  to  assemble  in  the  following  May,  for  the 
revision  of  the  Federal  Constitution. 

1  Ibid.  231. 


CHAPTER   I Y. 

Origin  and  Necessity  of  the  Power  to  regulate  Commkrcb. 

Among  all  the  causes  which  led  to  the  establish- 
ment of  the  Constitution  of  the  United  States,  there 
is  none  more  important,  and  none  that  is  less  appre- 
ciated at  the  present  day,  than  the  inability  of  the 
Confederation  to  manage  the  foreign  commerce  of  the 
country.  We  have  seen  that,  when  the  Articles  of  Con- 
federation were  proposed  for  adoption  by  the  States, 
the  State  of  New  Jersey  remonstrated  against  the  ab- 
sence of  all  provision  for  placmg  the  foreign  trade  of 
the  States  under  the  regulation  of  the  federal  gov- 
ernment. But  this  remonstrance  was  without  effect, 
and  the  instrument  went  into  operation  in  1781, 
with  no  other  restriction  upon  the  powers  of  the 
States  to  regulate  trade  according  to  their  pleasure, 
than  a  prohibition  against  levying  imposts  or  duties 
which  would  interfere  with  the  treaties  then  pro- 
posed. While  the  war  continued,  the  subject  was 
of  comparatively  little  importance.  But  the  return 
of  peace  found  this  country  capable  of  becoming  a 
great  commercial,  as  well  as  agricultural  nation ;  and 
it  could  not  be  overlooked,  that  its  government  pos- 
sessed very  inadequate  means  for  estabhshing  such 


Ch.  IV.]  THE   CONFEDERATION.  277 

relations  \\itli  foreign  powers  as  would  best  develop 
its  resoiu'ces  and  conduce  to  its  internal  harmony 
and  prosperity.  How  early  this  great  interest  had 
attracted  the  attention  of  those  who  were  most  capa- 
ble of  enlarged  and  statesmanlike  \iews  of  the  actual 
natui'e  of  the  Union  and  the  wants  of  the  States, 
there  are  perhaps  as  yet  before  the  world  no  suffi- 
cient means  of  determining.  We  know,  however, 
that,  before  the  peace,  Hamilton  saw  clearly  that  it 
was  essential  for  the  United  States  to  be  vested  with 
a  general  superintendence  of  trade,  both  for  pur- 
poses of  revenue  and  regulation ;  that  he  foresaw  the 
encouragement  of  our  o^\ai  products  and  manufac- 
tures, by  means  of  general  proliibitions  of  particular 
articles  and  a  judicious  arrangement  of  duties,  and 
that  this  could  only  be  effected  by  a  central  author- 
ity ;  and  that  the  due  observance  of  any  commercial 
treaty  which  the  United  States  might  make  with  a 
foreign  power  coidd  not  be  expected,  if  the  different 
States  retained  the  regulation  of  their  own  trade,  and 
thus  held  the  practical  construction  of  treaties  in 
their  own  hands.-^ 

But  it  does  not  appear  that,  among  the  other  prin- 
cipal statesmen  of  the  Eevolution,  these  ideas  had 
made  much  progress,  until  the  entire  incapacity  of 
the  Confederation  to  negotiate  advantageous  com- 
mercial treaties,  for  want  of  adequate  power  to  en- 


1  Life  of  Hamilton,  II.  233,  234.  1783,  and  especially  the  eighth  res- 
See  also  his  resolutions  on  the  de-  olution.     Works  of  Hamilton,  II 
fects  of  the  federal  government,  in-  269. 
tended  to  be  offered  in  Congress  in 


278 


THE  FEDERAL  CONSTITUTION. 


[Book  III, 


force  them,  had  displayed  the  actual  wealoiess  of  its 
position,  and  the  oppressive  measures  of  other  coun- 
tries had  taught  them  that  there  was  but  one  remedy 
for  such  evils.  Then,  indeed,  they  saw  that  the 
United  States  could  have  a  standing  as  a  commercial 
power  among  the  other  powers  of  the  world,  only 
when  their  representatives  could  be  received  and 
dealt  with  as  the  representatives  of  one,  and  not  of 
thirteen  sovereignties ;  and  that,  if  the  measures  of 
other  countries,  injurious  to  the  trade  of  America, 
were  to  be  counteracted  at  all,  it  must  be  by  a  power 
that  could  prohibit  access  to  all  the  States  alike,  or 
grant  it  as  to  all,  as  circumstances  might  require.-^ 


1  Hamilton  himself,  in  some  pa- 
pers which  he  published  in  1781, 
under  the  title  of  The  Continental- 
ist,  gave  the  general  sum  of  Amer- 
ican statesmanship  and  its  oppor- 
tunities, down  to  that  period.  The 
events  of  the  next  seven  years  gave 
it  a  wonderful  development.  "  It 
would  be  the  extreme  of  vanity  in 
us,"  said  he,  "not  to  be  sensible 
that  we  began  this  revolution  with 
very  vague  and  confined  notions  of 
the  practical  business  of  govern- 
ment. To  the  greater  part  of  us, 
it  was  a  novelty ;  of  those  who 
under  the  former  constitution  had 
had  opportunities  of  acquiring  ex- 
perience, a  large  proportion  ad- 
hered to  the  opposite  side,  and  the 
remainder  can  only  be  supposed  to 
have  possessed  ideas  adapted  to  the 
narrow  colonial  sphere  in  which 
they  had  been  accustomed  to  move, 
not  of  tliat  enlarged  kind  suited  to 


the  government  of  an  independent 
nation.  There  were,  no  doubt,  ex- 
ceptions to  these  observations  ;  — 
men  in  all  respects  qualified  for 
conducting  the  public  affairs  with 
skill  and  advantage  ;  —  but  their 
number  was  small ;  they  were  not 
always  brought  forward  in  our  coun 
cils;  and  when  they  were,  their 
influence  was  too  commonly  borne 
down  by  the  prevailing  torrent  of 
ignorance  and  prejudice.  On  a  ret- 
rospect, however,  of  our  transac- 
tions, under  the  disadvantages  with 
which  we  commenced,  it  is  per- 
haps more  to  be  wondered  at,  that 
we  have  done  so  well,  than  that 
we  have  not  done  better.  There 
are,  indeed,  some  traits  in  our  con 
duct,  as  conspicuous  for  sound  pol 
icy  as  others  for  magnanimity. 
But,  on  the  other  hand,  it  must 
also  be  confessed,  there  have  been 
many  false  steps,  many  chimerical 


Uh.  IV.]  THE   CONFEDEKATION.  279 

The  actual  commercial  relations  of  the  United 
States  Avith  other  countries,  when  the  peace  took 
place,  were  confined  to  treaties  of  amity  and  com- 
merce with  France,  Sweden,  and  the  Netherlands  ; 
the  two  latter  transcending,  in  some  degree,  the 
powers  of  the  Confederation,  In  1776,  the  Revolu- 
tionary Congress  had  adopted  a  plan  of  treaties  to  be 
proposed  to  France  and  Spain,  which  contemplated 
that  the  subjects  of  each  country  should  pay  no 
duties  in  the  other  except  such  as  were  paid  by  na- 
tives, and  should  have  the  same  rights  and  privileges 
as  natives  in  respect  to  navigation  and  commerce.-^ 
When  a  treaty  of  amity  and  commerce  came  to 
be  concluded  with  France,  in  1778,  the  footing  on 
which  the  subjects  of  the  two  countries  were  placed, 
in  the  dominions  of  each  other,  was  that  of  the  most 
favored  nations,  instead  of  that  of  natives.^  The 
Articles  of  Confederation,  proposed  in  1777,  and 
finally  ratified  in  March,  1781,  reserved  to  the  States 
the  right  of  le^^'ing  duties  and  imposts,  excepting 
only  such  as  would  interfere  with  any  treaties 
that  might  be  made  "  pursuant  to  the  treaties  pro- 
posed to  France  and  Spain."  The  United  States 
coidd  therefore  constitutionally  complete  these  two 

projects  and  Utopian  speculations,  evils.     It  is  to  this  source  we  are 

in  the  management  of  our  civil  as  to  trace  many  of  the  fatal  mistakes, 

well  as  of  our  military  affairs.      A  which  have  so  deeply  endangered 

part  of  these  were  the  natural  ef-  the   common    cause  ;    particularly 

fects  of  the  spirit  of  the  times,  die-  that  defect  which  will  be  the  object 

tated   by   our   situation.      An  ex-  of  these  remarks,  —  awantofpow- 

treme  jealousy  of  power  is  the  at-  er  in  Congress."     Works,  II.  186. 
tendant  on  all  popular  revolutions,  i  Secret  Journals,  11.  7,  8. 

and   has  seldom  been  without  its  -  Ibid.  59. 


280  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

treaties,  and  such  as  were  dependent  upon  them,  but 
no  others  which  should  have  the  effect  of  restraining 
the  legislatures  of  the  States  from  prohibiting  the 
exportation  or  importation  of  any  species  of  goods  or 
merchandise,  or  laying  whatever  duties  or  imposts 
they  thought  proper.-^ 

In  1782,  negotiations  were  entered  into  for  a  simi- 
lar treaty  "with  the  States  General  of  the  Netherlands. 
When  the  instructions  to  Mr.  Adams  to  negotiate 
this  treaty  were  under  consideration  in  Congress,  it 
was  recollected  that  the  French  treaty  contained  a 
stipulation,  the  effect  of  which  would  enable  the 
heirs  of  the  subjects  of  either  party,  dying  in  the 
territories  of  the  other,  to  inherit  real  property,  with- 
out obtaining  letters  of  naturalization.^  The  doubt 
suggested  itself,  —  as  it  well  might,  —  whether  such 
an  indefinite  license  to  aliens  to  possess  real  property 
within  the  United  States,  was  not  an  encroachment 
upon  the  rights  of  the  States.  It  seems  to  have  been 
expected,  when  the  French  treaty  was  entered  into, 
that  the  States  would  acquiesce  m  this  provision,  on 
account  of  the  peculiar  relations  of  this  country  to 


1  Articles  of  Confederation,  Art.  States  the  general  power  of  levy 

VI.,  IX.     The  expression  in  the  ing  duties  and  laying  prohibitions. 

52X<A  article  was  :  "  No  State  shall  2  Secret  Journals,    II.   G5,   66. 

lay  any  imposts,  &c.  that  shall  in-  Art.  XIII.  of  the  Treaty  of  Amity 

interfere  with  any  stipulations  in  and  Commerce  with  France.     The 

treaties  entered  into  by  the  United  expression  employed  was,  "  goods 

States  with  any  king,  prince,  or  movable  and  immovable,"  and  the 

state,  ni  pursuance  of  any  treaties  right  of  succession  was  given,  ab 

already  proposed  by  Congress  to  intestaio,    without    first    obtaining 

the  court  of  France  and  Spain."  letters  of  naturalization. 
The    ninth    article    saved   to   the 


Ch.  IV.]  THE   COKFEDERATION.  281 

France,  and  because  of  the  saving  clause  in  the  Arti- 
cles of  Confederation  in  favor  of  the  treaties  to  be 
made  with  that  power  and  with  Spain.^  But  such  a 
stipulation  as  this  was  clearly  not  withm  the  mean- 
ing of  that  clause ;  and  it  was  received  with  great  re- 
pugnance by  many  of  the  States.^  In  the  treaty  with 
the  Netherlands,  it  was  proposed  to  insert  a  similar 
provision ;  but  it  was  found  to  be  extremely  improb- 
able that  the  States  would  comply  with  a  similar 
engagement  with  another  power.  The  language  was 
therefore  varied,  so  as  to  give  the  privilege  of  inherit- 
ance only  as  to  the  "effects"  of  persons  dying  m  the 
country ;  —  an  expression  which  would  probably  ex- 
clude real  property,  but  which  might  possibly  be 
construed  to  include  it.^ 

With  regard  to  duties  and  imposts,  the  Dutch 
treaty  contained  the  same  stipulation  as  the  French, 
putting  the  subjects  of  either  power  on  the  footing 
of  the  most  favored  nations,  and  thereby  holding  out 
to  the  subjects  of  the  United  Pro\inces  the  promise 
of  an  equahty,  under  the  laws  of  the  United  States, 
with  the  subjects  of  France.*  The  same  stipulation 
was  inserted  in  a  treaty  subsequently  made  at  Paris 
with  the  King  of  Sweden.^ 

If  these  stipulations  were  supposed  or  intended  to 


1  See  a  report  on  this  projet  of  erlands,   executed  by  Mr.  Adams 
the  treaty,  made  by  Mr.  Madison,  at  the  Hague,   October   8,   1782 
July  17,   1782.     Secret  Journals,  Journals,  VIII.  96. 
11.142-144.  4  Ibid.,  Art.  II.,  III. 

2  Ibid.  5  April    3,    1783.       Journals, 

3  Art.  VI.  of  the  Treaty  of  Am-  VIII.  386  -  398. 
ity  and  Commerce  with  the  Neth- 

voi.    !  36 


282  TIIE  FEDERAL   CONSTITUTION.  [Book  DI. 

be  binding  upon  the  States,  so  as  to  restrain  them 
from  adoptmg,  within  their  respective  jurisdictions, 
any  other  rule  than  that  fixed  by  the  French  treaty, 
for  the  subjects  of  the  United  Provinces  and  the 
King  of  Sweden,  it  is  quite  clear  that  the  Articles 
of  Confederation  gave  no  authority  to  Congress  to 
make  them.  They  could  have  no  effect,  therefore,  in 
producing  a  uniformity  of  regulation  throughout  the 
United  States,  with  regard  to  the  trade  with  Sweden 
and  the  Netherlands. 

The  relations  of  the  United  States  with  Great 
Britain  were,  however,  far  more  important,  than  their 
relations  with  Sweden  or  HoUand.  Wlien  the  war 
was  dra"\ving  to  a  close,  and  the  provisional  articles 
of  peace  had  been  agreed  upon,  a  measure  was  in 
preparation  in  England,  under  the  auspices  of  Mr. 
Pitt,  designed  as  a  temporary  arrangement  of  com- 
mercial intercourse  between  Great  Britain  and  the 
United  States,  and  which  would  have  enabled  the 
government  of  this  country  to  have  formed  a  treaty 
so  advantageous,  that  the  States  would  doubtless 
have  conformed  their  legislation  to  its  provisions. 
That  great  statesman  perceived,  that  it  was  ex- 
tremely desirable  to  establish  the  intercourse  of  the 
two  countries  on  the  most  enlarged  principles  of 
reciprocal  benefit,  and  his  purpose  was,  by  a  pro- 
visional arrangement,  to  evince  the  disposition  of 
England  to  be  on  terms  of  amity  with  the  United 
States,  preparatory  to  the  negotiation  of  a  treaty.^ 

1  Mr.  Pitt's  bill  was  brought  out  of  office  immediately  after- 
in  in  March,  1783,  and  he  went      wards. 


Ch.  IV.]  THE  CONFEDERATION.  283 

But  the  administratiou,  in  which  he  was  then  Chan- 
cellor of  the  Exchequer,  went  out  of  office  imme- 
diately after  he  had  proposed  this  measure,  and  their 
successors,  following  a  totally  different  line  of  pol- 
icy, procured  an  act  of  Parhament  authorizing  the 
King  in  Council  to  regulate  the  commercial  inter- 
course between  the  United  States  and  Great  Britain 
and  her  dependencies.-^ 

Mr.  Pitt's  bill  was  designed  to  admit  the  vessels 
and  subjects  of  the  United  States  into  all  the  ports 
of  Great  Britam,  in  the  same  manner  as  the  subjects 
and  vessels  of  other  independent  sovereign  states, 
and  to  admit  merchandise  and  goods,  the  growth, 
produce,  or  manufacture  of  this  country,  under  the 
same  duties  and  charges  as  if  they  were  the  property 
of  British  subjects,  imported  m  British  vessels.  It 
also  proposed  to  establish  an  entirely  free  trade  be- 
tween the  United  States  and  the  British  islands,  col- 
onies, and  plantations  in  America.  The  new  admm- 
istration,  on  the  contrary,  believing  that  this  would 
encourage  the  American  marine,  to  the  rum  of  that 
of  Great  Britain,  and  would  deprive  the  latter  of  a 
monopoly  in  the  consumption  of  her  colonies,  and 
in  their  carrying  trade,  resolved  to  reverse  this  entire 
policy,  f  In  this  course,  they  were  encouraged  by  the 
views  which  they  took  of  the  internal  situation  of 
this  country,  and  which  were,  to  a  great  extent,  jus- 
tified by  the  fact.  They  beUeved  that  we  could  not 
act,  as  a  nation,  upon  questions  of  commerce ;  that 

1  April,  1783 


284  THE  FEDERAL  CONSTITUTION.  [Book  IH 

the  climates,  the  staples,  and  the  manners  of  the 
States  were  different,  and  their  interests  therefore 
opposite;  and  that  no  combmation  was  likely  to 
take  place,  from  which  England  would  have  reason 
to  fear  retaliation.  They  supposed,  that,  inasmuch 
as  the  Confederation  had  no  power  to  make  any  but 
general  treaties,  and  as  the  States  had  reserved  to 
themselves  nearly  every  power  concerning  the  regu- 
lation of  trade,  no  treaty  could  be  made  that  would 
be  bindmg  upon  all  the  States ;  and  that,  if  treaties 
should  become  necessary,  they  must  be  made  with 
the  States  respectively.  But  they  denied  that  treaties 
were  necessary,  and  maintained  that  it  would  be 
unwise  to  enter  at  present  into  any  arrangements  by 
which  they  might  not  wish  afterwards  to  be  bound. 
They  determined,  therefore,  to  deal  with  this  country 
as  a  collection  of  rival  States,  with  each  of  which 
they  could  make  their  own  terms,  after  the  pressure 
of  their  policy,  and  the  impossibility  of  escaping 
from  its  effects,  had  begun  to  be  felt.  They  accord- 
ingly began,  by  excluding  from  the  British  West 
Indies,  under  Orders  m  Council,  the  whole  Ameri- 
can marine,  and  by  prohibiting  fish,  and  many  im- 
portant articles  of  our  produce,  from  being  carried 
there,  even  in  British  vessels.^ 

At  the  termination  of  the  war,  the  foreign  com- 
merce of  the  United  States  was  caj)able  of  great  ex- 

1  July,  1783.     Their  idea  was,  would  soon  enter  into  all  necessary 

that,  if  the  American  States  should  regulations  with   the  consul,  and 

choose  to  send  consuls,  they  should  that  nothing  more  was  nccessaiy. 

be  received,  and  consuls   sent  to  See  Lord  Sheffield's  Observations 

them   in  return  •  that  each   State  on  American  Commerce. 


Ch.  IV.]  THE  CONTEDEEATION.  285 

pansion.    It  consisted  of  three  important  branches, — 
the  trade  of  the  Eastern,  that  of  the  Middle,  and  that 
of  the  Southern  States ;  each  of  which  reqnked  at 
once  the  means  of  reachmg  foreign  markets.     The 
rice  and  indigo  of  the  South  might  be  carried  to 
Europe.     The  Middle  States  might  export  to  Europe 
tobacco,  tar,  wheat,  and   flour;   and   to   the  West 
Indies,  pork,  beef,  bread,  flour,  lumber,  tar,  and  iron. 
The   Eastern   States  might  supply  the   markets  of 
Europe  with  spars,  ship-timber,  staves,  boards,  fish, 
and  oil,  and  those  of  the  West  Indies  with  lumber, 
pork,  beef,  live  cattle,  horses,  cider,  and  fish.     The 
whole  of  these  great  mterests  of  course  received  a 
sudden   and   almost  fatal    blow   from   the   Enghsh 
Orders  in  Council,  and  no  means  whatever  existed 
of  countervailmg  their  effects,  but  such  as  each  State 
could  provide  for  its  own  people,  by  its  own  legisla- 
tion. 

Congress,  however,  awoke  to  the  perception  of  an 
efiicient  and  appropriate  remedy,  of  a  temporary 
character,  and  prepared  to  apply  it,  through  an 
amendment  of  their  powers.  For  the  purpose  of 
meetmg  the  policy  of  Great  Britam  with  sunilar 
restrictions  on  her  commerce,  they  recommended  to 
the  States  to  vest  in  Congress,  for  the  term  of  fifteen 
years,  authority  to  prohibit  the  vessels  of  any  power, 
not  having  treaties  of  commerce  with  the  United 
States,  from  importing  or  exporting  any  commodities 
into  or  from  any  of  the  States,  and  also  Avith  the 
power  of  prohibitmg,  for  a  like  term,  the  subjects  of 
any  foreign   country,  imless   authorized  by   treaty, 


286  TIIE  EEDEEAL  CONSTITUTION.  [Book  III 

from  importing  into  the  United  States  any  merchan- 
dise not  the  produce  or  manufacture  of  such  coun- 
tr)\^  There  was  already  before  the  States,  as  we 
have  seen,  in  the  revenue  system  of  1783,  a  proposal 
to  them  to  vest  in  Congress  power  to  levy  certain 
duties  on  foreign  commodities,  for  the  same  period ; 
and  if  these  two  grants  of  power  had  been  made,  and 
made  promptly,  by  the  States,  Congress  would  have 
possessed,  for  a  time,  an  effectual  control  over  com- 
merce, and  the  practical  means  of  forming  suitable 
commercial  treaties. 

But  the  proposal  of  the  30th  of  April,  1784,  met 
with  a  tardy  and  reluctant  attention  among  the 
States.  Only  one  of  them  had  acted  upon  it,  as  late 
as  the  following  February,  when  the  delegates  for 
Maryland  laid  before  Congress  an  act  of  that  State 
upon  the  subject.^  New  Hampshire  was  the  next 
State  to  comply,  in  the  succeeding  June.^  In  the 
mean  time,  however,  Congress  prepared  to  prosecute 
negotiations  in  Europe,  trusting  to  the  chances  of  an 
enlargement  of  their  powers,  m  pursuance  of  their 
recommendation.  Accordingly,  they  proceeded,  in 
the  spring  of  1784,  to  appoint  a  commission  to  ne- 
gotiate commercial  treaties,  and  settled  the  prin- 
ciples on  which  such  treaties  were  to  be  formed. 
The  leading  principle  then  detemiined  on  was,  that 
each  party  to  the  treaty  should  have  a  right  to  carry 
their  own  produce,  manufactures,  and  merchandise 


1  April  30,  1784.  ^  By  an  act  passed  June  22  - 

2  February  14. 1785.     Journals,      23,    1785 ;    laid    before    Congresa 
X.  53.  October  10,  1785.     Ibid.  353. 


Ch  iv.]  the  confederation.  287 

in  their  own  bottoms  to  the  ports  of  the  other,  and 
to  take  thence  the  produce,  manufactures,  and  mer- 
chandise of  the  other,  paying,  in  both  cases,  such 
duties  only  as  were  paid  by  the  most  favored  nation. 
The  resolves  appointing  the  commission  also  con- 
tained a  very  explicit  direction,  that  "  the  United 
States,  in  all  such  treaties,  and  in  every  case  arising 
under  them,  should  be  considered  as  one  nation, 
upon  the  prmciples  of  the  Federal  Constitution."^ 
Yet  the  Federal  Constitution  did  not,  at  that  very 
moment,  make  the  United  States  one  nation  for 
this  purpose.  Its  principles  gave  to  Congress  no 
authority  which  could  prevent  the  States  from  pro- 
hibiting any  exportations  or  importations  whatever, 
as  to  their  respective  territories  ;  and  the  validity  of 
these  treaties,  thus  proposed  to  be  negotiated  with 
fifteen  European  powers,  depended  altogether  upon 
the  precarious  assent  of  the  thirteen  States  to  the 
alterations  in  the  principles  of  the  Federal  Constitu- 
tion which  Congress  had  proposed. 

That  assent  was  not  likely  to  be  given,  so  as  to 
become  effectual  for  the  purposes  for  which  it  had 
been  asked.  The  action  of  the  States  was  foimd,  in 
the  spring  of  1786,  to  present  a  mass  of  incongrui- 

1  The  commission  consisted  of  tiate  commercial  treaties  were  Rus- 

Mr.  John  Adams,  then  at  the  Hague,  sia,    Austria,    Prussia,    Denmark, 

Dr.  Franklin,  then  in  France,  and  Saxony,  Hapnburg,  Great  Britain, 

Mr.  Jefferson,  then   in  Congress.  Spain,  Portugal,  Genoa,  Tuscany, 

Mr.  Jefferson  sailed  from  Boston  Rome,  Naples,  Venice,  Sardinia, 

on  the  5th  of  July,  and  arrived  in  and    the   Ottoman   Porte.      Secret 

Paris  on  the  6th  of  August,  1784.  Journals,  III.  484-489.     May  7 

(Works,    I.    49.)      The    powers  1784. 
with   whom   they  were   to  nego- 


288  TILE  FEDERAL  CONSTITUTION.  [Book  III. 

ties,  which  rendered  the  whole  scheme  of  thus  increas- 
ing the  federal  powers  almost  hopeless.  Four  of  the 
States  had  passed  laws,  conforming  substantially  to 
the  recommendations  of  Congress,  but  restraining 
their  operation  until  the  other  States  should  have 
complied.-^  Three  of  the  States  had  passed  the  requi- 
site acts,  and  had  fixed  different  periods  at  w^liich 
they  were  to  take  effect.^  One  State  had  granted 
full  powers  to  regulate  its  trade,  by  restrictions  or 
duties,  for  fifteen  years,  with  a  proviso  that  the  law 
should  be  suspended  until  all  the  other  States  had 
done  the  same.^  Another  State  had  granted  power, 
for  twenty-five  years,  to  regulate  trade  between  the 
respective  States,  and  to  prohibit  or  regulate  the  im- 
portation only  of  foreign  goods  in  foreign  vessels,  but 
restricting  the  operation  of  the  act  until  the  other 
States  had  passed  similar  laws.*  Still  another  State 
had  granted  powers  like  the  last,  but  without  limi- 
tation of  time,  and  with  the  proviso  that,  when  all 
the  other  States  had  made  the  same  grants,  it  should 
become  an  Article  of  the  Confederation.^  The  three 
remaining  States  had  passed  no  act  upon  the  sub- 
ject.^ Upon  these  conflictmg  and  irreconcilable  pro- 
visions. Congress  could  take  no  other  action,  than  to 
call  the  attention  of  the  States  agam  to  the  original 
proposal,  and  request  them  to  revise  their  laws.'^ 

J  Massachusetts,     New    York,  ^  North  Carolina. 

New   Jersey,   and   Virginia.  "  Delaware,  South  Carolina,  and 

2  Connecticut,  Pennsylvania,  and      Georgia. 

Maryland.  '  See   a   report    made   in   Con- 

3  New  Hampshire.  gress,  March  3,  1786.     Journals, 

4  Rhode  Island.  XI.  41. 


Cu.  IV.] 


THE   CONFEDERATION. 


289 


While  tliis  discordant  legislation  was  manifesting  at 
home  the  entire  impracticability  of  amending  the  Fed- 
eral Constitution  by  means  of  the  separate  action  of 
the  State  legislatui*es,  the  commissioners  abroad  were 
engaged  in  efforts,  nearly  as  fruitless,  to  negotiate 
the  treaties  which  they  had  been  instructed  to  make. 
The  commission  was  opened  at  Paris  on  the  13  th  of 
August,  1784,  and  its  objects  announced  to  the  differ- 
ent governments.  France  was  not  disposed  to  change 
the  existing  relations.  England  perceived  the  real 
want  of  power  in  the  federal  government,  and  recog- 
nized nothmg  in  the  commission  but  the  fact  that 
it  had  been  issued  by  Congress,  whUe  the  separate 
States  had  conferred  no  powers  upon  either  Congress 
or  the  commissioners.-^     Prussia  alone  entered  into  a 


*  The  Duke  of  Dorset,  the  Eng- 
lish Ambassador  at  Paris,  wrote  to 
the  commissioners  (March  26,  1785) 
as  follows  :  "  Having  communi- 
cated to  my  court  the  readiness  you 
expressed  in  your  letter  to  me  of 
the  9th  of  December  to  remove  to 
London,  for  the  purpose  of  treating 
upon  such  points  as  may  materially 
concern  the  interests,  both  political 
and  commercial,  of  Great  Britain 
and  America ;  and  having  at  the 
same  time  represented  that  you 
declared  yourselves  to  be  fully  au- 
thorized and  empowered  to  nego- 
tiate, I  have  been,  in  answer  there- 
to, instructed  to  learn  from  you, 
gentlemen,  what  is  the  real  nature 
of  the  powers  with  which  you  are 
invested,  —  whether  you  are  mere- 
ly commissioned   by  Congress,  or 

VOL.  I.  37 


whether  you  have  received  sepa- 
rate powers  from  the  respective 
States.  A  committee  of  North 
American  merchants  have  waited 
upon  his  Majesty's  principal  Sec 
retary  of  State  for  Foreign  Affairs, 
to  express  how  anxiously  they 
wished  to  be  informed  upon  this 
subject ;  repeated  experience  hav- 
ing taught  them  in  particular,  as 
well  as  the  public  in  general,  how- 
little  the  authority  of  Congress 
could  avail  in  any  respect,  where 
the  interest  of  any  one  individual 
State  was  even  concerned,  and  par- 
ticularly so  where  the  concerns  of 
that  State  might  be  supposed  to 
militate  against  such  resolutions 
as  Congress  might  think  proper  to 
adopt.  The  apparent  determina- 
tion of  the  respective  States  to  reg- 


290  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

treaty,  upon  some  of  the  principles  laid  clown  in  the 
commission,  and  soon  after  it  was  executed,  the  com 
missioners  ceased  to  do  any  thing  whatever.-^ 

During  the  period  which  elapsed  from  the  Treaty 
of  Peace  with  England  to  the  assembling  of  the  Con- 
vention at  Annapolis,  the  legislation  of  the  different 
States,  designed  to  protect  themselves  against  the 
policy  of  England,  was  of  course  without  system  or 
concert,  and  without  uniformity  of  regulation.  At 
one  time  duties  were  made  extravagantly  high;  at 
another,  competition  reduced  them  below  the  point 
at  which  any  considerable  revenue  could  be  derived 
At  one  time,  the  States  acted  in  open  hostility  to 
each  other;  at  another,  they  contemplated  commer- 
cial leagues,  without  regard  to  the  prohibition  con- 
tained in  the  Articles  of  Confederation.  No  steady 
system  was  pursued  by  any  of  them,  and  the  ineffi- 
cacy  of  State  legislation  became  at  length  so  appar- 
ent, that  a  conviction  of  the  necessity  of  new  powers 
in  Congress  forced  itself  upon  the  public  mind. 


ulate  their  own  separate  interests  be  in  the  power  of  any  one  of  the 
renders  it  absolutely  necessary,  to-  States  to  render  totally  fruitless 
wards  forming  a  permanent  system  and  ineffectual."  Diplomatic  Cor- 
of  commerce,  that  my  court  should  respondence,  II.  297. 
oe  informed  how  far  the  commis-  l  Jefferson's  Works,  I.  50,  51. 
sioners  can  be  duly  authorized  to  The  whole  proceedings  of  this  corn- 
enter  into  any  engagements  with  mission  may  be  found  in  the  Dipio- 
Great  Britain,  which   it  may  not  maticCorrespondence,  11. 193-346. 


CHAPTEE  V. 

1783-1787. 

The  Public  Lands. — Government  of  the  Northwestern  Terri- 
TORV.  —  Threatened  Loss  of  the  Western  Settlements. 

The  Confederation,  although  preceded  by  a  cession 
of  Western  territory  from  the  State  of  New  York  for 
the  use  of  the  United  States,  contained  no  grant  of 
power  to  Congress  to  hold,  manage,  or  dispose  of 
such  property.  There  had  been,  while  the  Articles 
of  Confederation  were  under  discussion  in  Congress,  a 
proposal  to  msert  a  provision,  givmg  to  Congress  the 
sole  and  exclusive  right  and  power  to  ascertain  and 
fix  the  western  boundary  of  such  States  as  claimed 
to  the  Mississippi  or  the  South  Sea,  and  to  lay  out 
the  land  beyond  the  boundary  so  ascertained  into 
separate  and  independent  States,  from  time  to  time, 
as  the  numbers  and  circumstances  of  the  inhabitants 
might  require.-^  This  proposal  was  negatived  by  the 
vote  of  every  State  except  Maryland  and  New  Jersey.^ 
Its  rejection  caused  the  adoption  of  the  Confedera- 
tion to  be  postponed  for  a  period  of  more  than  two 
years  after  it  was  submitted  to  the  States.^     Virginia 

1  October     15,    1777.       Secret  2  ibid. 

Journals,  I.  328.  3  See  the  account  of  the  adop- 


292  THE  FEDERAL  CONSTITUTION.  [Book  HI 

had  set  up  claims  to  an  indefinite  extent  of  territory, 
stretching  far  into  the  Western  wilderness,  which 
were  looked  upon  with  especial  jealousy  by  Main- 
land ;  and  when  the  Articles  of  Confederation  came 
before  the  legislature  of  that  State  for  consideration, 
the  absence  of  any  provision  vesting  in  the  Union  any 
control  over  these  claims,  or  any  power  to  ascertain 
and  fix  the  western  boundaries  of  the  great  States, 
became  at  once  a  cause  of  irritation  and  alarm.  The 
steps  taken  by  Maryland  to  have  this  power  intro- 
duced into  the  Articles  have  already  been  detailed.^ 
But  the  Articles  could  not  be  amended.  Congress 
could  only  make  efforts  to  remove  this  impediment 
to  their  adoption,  by  recommending  to  the  States  to 
cede  their  territorial  claims  to  the  Union.  The  first 
step  which  they  took,  for  this  pui'pose,  was  to  rec- 
ommend to  the  State  of  Virginia,  and  all  the  other 
States  similarly  situated,  not  to  make  sales  of  unap- 
propriated lands  during  the  continuance  of  the  war.^ 
This  was  followed  by  a  full  consideration  of  the 
subject  presented  by  the  objections  of  Maryland  and 
the  remonstrance  of  Virginia.  Declinmg  to  reopen 
the  question  of  the  merits  or  policy  of  attempting 
to  engraft  the  proposed  power  upon  the  Confedera- 
tion, Congress  deemed  it  more  advisable  to  endeavor 
to  procure  a  surrender  of  a  portion  of  the  territorial 
claims  of  the  several  States.^  In  pressing  a  recom- 
mendation to  this  effect,  they  were  greatly  aided  by 

tion  of  the  Confederation,  ante,  pp.  2  October  30,   1779.     Journals, 

131-141.  V.  401,402. 

'  Ante,  pp.  131-136  ^  September  6,  1780. 


Ch.  v.]  the  confederation.  293 

the  course  of  the  State  of  New  York,  which  had 
already  authorized  its  delegates  in  Congress  to  limit 
its  western  boundaries,  and  to  cede  a  portion  of  its 
vacant  lands  to  the  United  States.-^  They  then  im- 
mediately declared,  by  resolve,  the  pui-poses  for  which 
such  cessions  were  to  be  held.  The  territories  were 
to  be  disposed  of  for  the  common  benefit  of  the 
United  States ;  to  be  settled  and  formed  into  distinct 
republican  States,  which  should  become  members  of 
the  Federal  Union,  and  have  the  same  rights  of 
sovereignty,  freedom,  and  independence  as  the  oth- 
er States.  Each  State  so  formed  was  to  contain  a 
suitable  extent  of  territory,  not  less  than  one  hun- 
dred, nor  more  than  one  hundi-ed  and  fifty  miles* 
square  ;  the  necessary  expenses  mcurred  by  any  State 
in  acquiring  the  territory  ceded,  were  to  be  reim- 
bursed; and  the  lands  were  to  be  granted  or  set- 
tled at  such  times,  and  under  such  regulations,  as 
should  thereafter  be  agreed  upon  by  the  United 
States  in  Congress  assembled,  or  any  nine  or  more 
of  them.^ 

The  cessions  w^ere  made  under  the  guaranties  of 
this  resolve.  Strictly  speakmg,  there  was  no  express 
constitutional  power  mider  which  Congress  could 
thus  act,  either  before  or  after  the  adoption  of  the 
Articles  of  Confederation.  Before  that  period,  if  the 
United  States  could  acquire  and  hold  lands,  for  any 
purpose,  it  coidd  only  be  by  the  common  attribute 
of  sovereignty  belongmg  to  every  government.     Per- 

1  February  19,  1780.  2  October  10,  1760. 


294  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

haps  this  power  existed,  by  implication,  m  the  revo- 
lutionary government;  but  the  compact  which  was 
to  constitute  the  new  government  contained  no  au- 
thority for  the  establishment  of  new  States  within 
the  limits  of  the  Union.  But  when,  aside  from  the 
Articles  of  Confederation,  and  before  they  had  been 
adopted,  the  Kevolutionary  Congress  undertook,  in 
1780,  to  hold  out  these  inducements  to  the  States, 
as  motives  for  their  adoption  of  that  instrument,  and 
these  motives  were  acted  upon  and  the  cessions  made, 
it  must  be  taken  that  the  territory  came  rightfully 
into  the  possession  of  the  United  States.  Whether 
the  adoption  of  the  Articles,  containmg  no  x^ower  for 
the  government  of  such  territories,  or  for  the  admis- 
sion of  new  States  into  the  Union,  did  not  place  the 
new  government  in  a  position  where,  if  it  acted  at 
all,  it  would  act  beyond  the  scope  of  its  constitu- 
tional authority,  certamly  admitted  of  grave  ques- 
tion.^ But  the  acquisition  of  the  territory  itself 
rested  upon  acts,  which  were  so  directly  and  ex- 
pressly connected  with  the  establishment  of  the  new 
Union  under  the  Confederation,  as  to  make  the  ac- 
quisition itself  part  of  the  fundamental  conditions  of 
that  Union,  and  the  principal  guaranty  of  its  con- 
tinuance. Among  the  declared  purposes  for  which 
these  acquisitions  were  made,  was  that  of  forming 
them  into  new  States,  to  be  admitted  into  the  Union  ; 
and  as  all  the  States  acquiesced  in  and  embraced 
this  purpose,  they  may  be   said  to   have   conferred 

I  The  Federalist. 


Ch.  v.]  the  contederation.  295 

upon  Congress  an  implied  power  to  legislate  to  car- 
ry it  into  effect.  Still,  the  want  of  an  express  au- 
thority in  the  Articles  thus  to  deal  with  acquked 
territory  was  afterwards  felt  and  insisted  upon,  as 
the  Confederation  drew  towards  the  close  of  its  ca- 
reer.-^ 

Virgmia,  m  1781,  offered  to  make  a  cession  to 
the  United  States  of  her  title  to  lands  northwest  of 
the  Ohio,  upon  certain  conditions,  which  were  not 
satisfactory,  and  the  subject  had  not  been  acted  upon 
in  Congress  when  the  revenue  system  of  1783  was 
adopted  for  recommendation  to  the  States.  Looking 
to  the  prospect  of  vacant  lands,  as  a  means  of  hasten- 
ing the  extinguishment  of  the  public  debts,  as  well 
as  of  establishing  the  harmony  of  the  Union,  Con- 
gress accompanied  the  recommendation  of  the  rev- 
enue system  by  new  solicitations  to  the  States  which 
had  made  no  cessions  of  their  public  lands,  or  had 
made  them  in  part  only,  to  comply  fully  with  the  for- 
mer recommendations.  This  drew  from  the  State  of 
New  Jersey,  apprehensive  that  the  offer  of  Virgmia 
might  be  accepted,  a  remonstrance  against  the  cession 
proposed  by  that  State,  as  partial,  unjust,  and  illib- 
eral.^ Congress  again  took  the  subject  into  consider- 
ation, examined  the  conditions  which  the  legislature 
of  Virginia  had  annexed  to  their  proposed  grant,  de- 
clared some  of  them  inadmissible,  and  stated  the  con- 
ditions on  which  the  cession  could  be  received.^  Vir- 
ginia complied  with  the  terms  proposed  by  Congress, 

1  Ibid.  3  September  13,  1783. 

3  June  20,  1783. 


296 


THE  FEDERAL  CONSTITUTION. 


[Book  III. 


and  upon  those  terms  ceded  to  the  United  States  all 
right,  title,  and  claim,  both  of  soil  and  jurisdiction, 
which  the  State  then  had  to  the  territory  within  the 
limits  of  its  charter,  lying  to  the  northwest  of  the 
river  Ohio.  That  magnificent  region,  in  which  now 
lie  the  powerful  States  of  Ohio,  Indiana,  Illinois, 
Michigan,  and  Wisconsin,  became  the  property  of 
the  United  States,  by  a  grant  of  twenty  lines,  exe- 
cuted in  Congress  by  Thomas  Jefferson  and  three  of 
his  colleagues,  on  the  1st  day  of  March,  1784.-^ 

Soon  after  this  cession  had  been  completed.  Con- 
gress passed  a  resolve  for  the  regulation  of  the  terri- 
tory that  had  been  or  might  be  ceded  to  the  United 
States,  for  the  establishment  of  temporary  and  per- 
manent  governments   by  the   settlers,  and   for   the 


1  Tlie  granting  part  of  the  deed 
of  cession,  exclusive  of  its  recitals, 
is  as  follows  :  "  That  we,  the  said 
Thomas  Jefferson,  Samuel  Hardy, 
Arthur  Lee,  and  James  Munroe, 
by  virtue  of  the  power  and  author- 
ity committed  to  us  hy  the  act  of 
the  said  General  Assembly  of  Vir- 
ginia before  recited,  and  in  the 
name  and  for  and  on  behalf  of  the 
said  Commonwealth,  do  by  these 
presents  convey,  transfer,  assign, 
and  make  over  unto  the  United 
States  in  Congress  assembled,  for 
the  benefit  of  the  said  States,  Vir- 
ginia inclusive,  all  right,  title,  and 
claim,  as  well  of  soil  as  of  juris- 
diction, which  the  said  Common- 
wealth hath  to  the  territory  or 
tract  of  country  within  the  lines 
of  the  Virginia  charter,  situate, 
lying,  and  being  to  the  northwest 


of  the  rirsr  Ohio,  to  and  for  the 
uses  and  purposes,  and  on  the  con- 
ditions, of  the  said  recited  act." 
The  cession  was  made  with  the 
reservation  of  such  a  portion  of 
the  territory  ceded,  between  the 
rivers  Scioto  and  Little  Miami,  as 
might  be  required  to  make  up  the 
deficiencies  of  land  on  the  south 
side  of  the  Ohio,  called  the  Green 
River  lands,  reserved  for  the  Vir- 
ginia troops  on  continental  estab- 
lishment. (Journals,  IX.  67-69.) 
Subsequently,  the  act  of  cession 
was  altered,  so  as  to  admit  of  the 
formation  of  not  more  than  five,  nor 
less  than  three  Slates,  of  a  size 
more  convenient  than  that  described 
in  the  act  of  cession  and  in  the  re- 
solve of  October  10,  1780.  (Jour- 
nals, XL  139, 110.     July  9,  1786.  j 


Oh.  v.]  the  conpedekation.  297 

admission  of  the  new  States  thus  formed  into  the 
Union.^      This   resolve   provided,  that  the  territory 
which  had  been   or  might  be  ceded  to  the  United 
States,  after  the  extmguishment  of  the  Indian  title, 
and  when  offered  for  sale  by  Congress,  shoidd  be 
divided  into  separate  States,  in  a  manner  specified ; 
that  the  settlers  on  such  territory,  either  on  their 
o-wn  petition  or  on  the  order  of  Congress,  should 
receive  authority  to  form  a  temporary  government; 
and  that  when  there  should  be  twenty  thousand  free 
inhabitants  within  the  limits  of  any  of  the  States 
thus  designated,  they  should  receive  authority  to  call 
a  convention  of  representatives  to  establish  a  per- 
manent constitution  and  government  for  themselves, 
provided   that   both  the  temporary  and  permanent 
governments  should  be  established  on  these  princi- 
ples, as  their  basis:  —  1.  That  they  should  for  ever 
remain  a  part  of  the  Confederacy  of  the  United  States 
of  America.     2.  That  they  should  be  subject  to  the 
Articles  of  Confederation  and  the  acts  and  ordinances 
of  Congress,  like  the  original  parties  to  that  instru- 
ment.    3.  That  they  should  in  no  case  interfere  with 
the  disposal  of  the  soil  by  Congress.     4.  That  they 
should  be  subject  to  pay  a  part  of  the  federal  debts, 
present  and  prospective,  in  the  same  measure  of  ap- 
portionment with  the  other  States.     5.    That  they 
should  impose  no  tax  upon  lands,  the  property  of 
the  United  States.     6.  That  their  respective  govern- 
ments should  be  republican.     7.  That  the  lands  of 


1  April  23,  1784.     Journals,  IX.  153. 
VOL.  I.  ,     38 


298  THE  FEDERAL  CONSTITUTION.  [Book  III. 

non-resident  proprietors  should  not  be  taxed  higher 
than  those  of  residents,  in  any  new  State,  before  its 
delegates  had  been  admitted  to  vote  in  Congress. 

The  resolve  also  contamed  a  provision,  which  ap- 
pears to  have  been  designed  to  meet  the  want  of  con- 
stitutional power,  under  the  Articles  of  Confedera- 
tion, relative  to  the  admission  of  new  States.  It  was 
declared,  that  whenever  any  of  the  States  thus  formed 
should  have  as  many  free  inhabitants  as  the  least 
numerous  of  the  thiiieen  original  States,  it  should 
be  admitted  by  its  delegates  into  Congress  on  an 
equal  footing  with  the  origmal  States,  provided  the 
assent  of  so  many  States  in  Congress  should  be  first 
obtained,  as  might  at  the  time  be  competent  to  such 
admission.  It  was  further  declared,  that,  in  order  to 
adapt  the  Articles  of  Confederation  to  the  condition 
of  Congress  when  it  should  be  thus  mcreased,  it 
should  be  proposed  to  the  original  States,  parties 
to  that  instrument,  to  change  the  rule,  which  re- 
quired a  vote  of  nme  States,  to  a  vote  of  two  thirds 
of  all  the  States  in  Congress ;  and  that  when  this 
change  had  been  agreed  upon,  it  should  be  binding 
upon  the  new  States. 

After  the  establishment  of  a  temporary  govern- 
ment, and  before  its  admission  into  the  Union,  each 
of  the  new  States  was  to  ha^'e  the  right  to  keep  a 
member  in  Congress,  with  the  privilege  of  debating, 
but  not  of  voting.  It  was  also  provided,  that  meas- 
ures not  inconsistent  with  the  principles  of  the  Con 
federation,  and  necessary  for  the  preservation  of  peace 
and  good  order  among  the  settlers  in  any  of  the  said 


Ch.  V.I  THE  COKFEDEllATION.  299 

new  States,  until  they  had  assumed  a  temporary  gov- 
ernment, might,  from  tune  to  time,  be  taken  by  the 
United  States  in  Congress  assembled. 

These  provisions  were  to  stand  as  a  charter  of 
compact  and  as  fundamental  constitutions  between 
the  thirteen  original  States  and  each  of  the  new  States 
thus  described,  unalterable  from  and  after  the  sale 
of  any  part  of  the  territory  of  such  State,  but  by  the 
jomt  consent  of  the  United  States  in  Congress  as- 
sembled, and  of  the  particular  State  to  be  affected.^ 

New  and  ui'gent  recommendations  followed  the  pas- 
sage of  this  resolve,  pressing  the  States  to  consider 
that  the  war  was  now  happily  brought  to  a  close,  by 
the  ser\ices  of  the  army,  the  supplies  of  property  by 
citizens,  and  loans  of  money  by  citizens  and  foreign- 
ers, constituting  a  body  of  creditors  who  had  a  right 
to  expect  indemnification,  and  that  the  vacant  terri- 
tory was  an  miportant  resource  for  this  great  object.^ 
The  subject  does  not  seem  to  have  again  occuj^ied 
the  attention  of  Congress  until  the  spring  of  the 
following  year,  when  a  proposition  was  introduced 
and  committed,  to  exclude  slavery  and  mvoluntary 
servitude,  otherwise  than  in  punishment  of  crimes, 
from  the  States  described  in  the  resolve  of  April  23d, 
1784,  and  to  make  this  provision  part  of  the  com- 
pact established  by  that  resolve.^ 

Soon  afterwards,  a  cession  was  made  by  Massa- 


1  April  23,  1784.     Journals,  IX.  3  This    proposition    was    intro- 
153.  duced  by  Rufus  King,  March  16, 

2  April    29,     1784.       Journals,  1785,  and   was  committed  by  the 
IX.  184.  votes  oi  eight  States  against  four. 


300  THE  TEDEKAL  CONSTITUTION.  [Book  IIL 

chusetts  of  all  its  right  and  title,  both  of  soil  and 
jurisdiction,  to  the  Western  territory  lyhig  within 
the  limits  of  the  charter  of  that  State.^  In  the  suc- 
ceeding month,  Congress  adopted  an  ordmance  for 
ascertainmg  the  mode  of  disposing  of  the  "Western 
lands  to  settlers.^  In  the  course  of  the  next  year, 
the  cession  by  Connecticut  was  made,  after  various 
negotiations,  mth  a  reservation  to  that  State  of  the 
property  in  a  considerable  tract  of  country,  since 
called  the  Connecticut  Reserve,  lying  to  the  south  of 
Lake  Erie,  and  now  embraced  within  the  State  of 
Ohio.3 

Before  this  transaction  had  been  completed,  it  had 
become  manifest,  from  the  knowledge  that  had  been 
obtained  of  the  country  northwest  of  the  Ohio,  that 
it  would  be  extremely  inconvenient  to  lay  it  out  into 
States  of  the  extent  and  dimensions  described  in  the 
resolve  of  October  10,  1780,  under  which  the  ces- 
sion of  Virgmia  had  been  made ;  and  the  legislature 
of  that  State  were  accordingly  asked  to  modify  their 


1  April  19,  1785.  necticut  claimed  to  own  a  larger 

2  May  20,  1785.  extent  of  territory  than   she  pro- 

3  September  14,  1786.  Jour-  posed  to  cede  ;  and  by  way  of  com- 
nals,  XI.  221  -223.  The  deed  of  promise,  her  claim  was  so  far  ac- 
cession, and  the  act  of  Connecticut  ceded  to,  that  Congress  agreed  to 
recited  in  it,  do  not  disclose  this  accept  of  a  cession  of  less  than  the 
reservation.  The  territory  ceded  whole.  The  reservation  embraced 
is  described  by  certain  lines  which  about  six  millions  of  acres.  See 
include  less  than  the  whole  claim  Sparks's  Washington,  IX.  178, 
of  Connecticut.  It  appears  from  note,  where  it  appears  that  the 
the  Journals,  under  the  date  of  right  of  the  State  to  this  territory 
May  22-2G,  1736,  and  from  vari-  was  considered  very  feeble  at  the 
ous  propositions  considered  between  time. 

those  dates,  that  the  State  of  Con- 


ch  v.]  the  confederation.  301 

act  of  cession,  so  as  to  enable  Congress  to  lay  out  the 
territory  into  not  more  than  five  nor  less  than  three 
States,  as  the  situation  and  circumstances  of  the 
country  might  require.^  This  suggestion  was  com- 
plied with.^ 

A  cession  by  South  Carolina  then  followed,  of  all 
its  claim  to  lands  lying  towards  the  river  Missis- 
sippi;^ but  no  other  cessions  were  made  to  the 
United  States  under  the  Confederation;  those  of 
Georgia  and  North  Carolma  ha\ing  been  made  after 
the  adoption  of  the  Constitution.* 

It  appears,  therefore,  that,  with  the  exception  of 
the  claims  of  South  Carolina  to  territory  l}ing  due 
west  from  that  State  towards  the  river  Mississippi, 
the  United  States,  before  the  13th  of  Jidy,  1787, 
had  become  possessed  of  the  title  to  no  other  terri- 
tory than  that  which  had  been  surrendered  to  them 
by  the  States  of  New  York,  Vii'ginia,  Massachusetts, 
and  Connecticut.  The  great  mass  of  this  territory 
was  that  embraced  within  the  cession  of  Virgmia, 
and  lying  to  the  northwest  of  the  river  Ohio;  and 
after  the  whole  title  to  this  region,  with  the  excep- 
tion of  some  reserved  tracts,  had  become  complete  in 
the  United  States,  it  was  subject  to  the  resolves  of 
1780  and  of  1784.  The  provisions  of  the  resolve 
of  1784,  however,  were  soon  seen  to  be  inconvenient 
and  inapplicable  to  the  pressing  wants  of  this  region. 
Immediate  legislation  was  plainly  demanded  for  this 

1  July  9,  1786.  ^  That  of  North  Carolina  was 

2  December  30,  1788.  made  February  25,  1790,  and  that 

3  August  9,  1787.  of  Georgia,  April  24,  1802. 


302  THE  FEDERAL  CONSTITUTION.  [Book  ni. 

territory,  which  could  not  wait  the  slow  process  of 
fomiing  first  temporary  and  then  permanent  gov- 
ernments, as  had  been  contemplated  by  that  resolve. 
Congress  had  had  cast  upon  it  the  administration  of 
an  empire,  exterior  to  the  Confederation,  and  rapidly 
filling  with  people,  in  which  the  rights  and  tenure 
of  property,  the  preservation  of  order  and  tranquillity, 
and  the  shaping  of  its  political  and  social  destinies,  re- 
quired instant  legislation.  This  legislation  was  there- 
fore provided  in  the  celebrated  Ordinance  for  the 
Government  of  the  Northwestern  Territory,  enacted 
July  13,  1787,  which  was  designed  to  supersede  and 
in  terms  directly  repealed  the  resolve  of  1784.  As 
this  fundamental  law  for  a  new  and  unsettled  coun- 
try —  at  that  time  a  novel  undertaking  —  must  al- 
ways be  regarded  with  interest  in  every  part  of  the 
world,  and  as  it  lies  at  the  foundation  of  the  civil 
pohty  of  a  sixth  part  of  these  United  States,  its  prin- 
ciples and  provisions  should  be  carefully  examined. 

The  territory  was,  for  the  purposes  of  temporary 
government,  constituted  one  district,  subject  to  be  di- 
vided into  two,  as  future  circumstances  might  require. 
An  equal  distribution  of  property  among  the  chil- 
dren of  persons  dymg  intestate,  with  a  life  estate  to 
the  widow  in  one  third  of  the  real  and  personal 
estate,  was  made  the  law  of  the  territory,  until  it 
should  be  altered  by  its  legislature.  Persons  of  full 
age  were  empowered  to  dispose  of  tlieir  estates  by  a 
written  will,  executed  in  the  presence  of  three  wit- 
nesses. Real  estates  were  authorized  to  be  conveyed 
by  deed,  executed  by  a  person  of  full  age,  acknowl- 


ch.  v.]  the  confederation.  303 

edged  and  attested  by  two  witnesses.  Both  wills 
and  deeds  were  required  to  be  registered.  Personal 
property  was  transferable  by  delivery. 

The  civil  government  of  the  territory  was  to  con- 
sist of  executive,  legislative,  and  judicial  branches. 
A  Governor  was  to  be  appointed  from  time  to  time 
by  Congress,  and  to  be  commissioned  for  three  years, 
subject  to  removal ;  but  he  was  to  reside  in  the  dis- 
trict, and  to  have  a  freehold  estate  there  in  one  thou- 
sand acres  of  land,  while  in  the  exercise  of  his  office. 
A  Secretary  was  also  to  be  appointed  from  time  to 
time  by  Congress,  and  to  be  commissioned  for  four 
years,  subject  to  removal,  but  to  reside  in  the  district, 
and  to  have  a  fi-eehold  estate  there  in  five  hundred 
acres  of  land,  while  in  the  exercise  of  his  office. 
There  was  also  to  be  appointed  a  court  of  common 
law  jurisdiction,  to  consist  of  three  judges,  any  two 
of  whom  should  form  a  court ;  they  were  to  reside 
in  the  district,  and  to  have  each  a  freehold  estate 
there  m  five  hundred  acres  of  land,  while  in  the  ex- 
ercise of  their  office ;  their  commissions  to  continue 
in  force  during  good  behavior. 

The  Governor  and  Judges,  or  a  majority  of  them, 
were  to  adopt  and  publish  in  the  district  such  laws 
of  the  origmal  States,  cruninal  and  ci\il,  as  might 
be  necessary  and  best  suited  to  the  circumstances  of 
the  district,  to  be  m  force  in  the  district  until  the 
organization  of  the  General  Assembly,  miless  disap- 
proved by  Congress,  to  whom,  from  time  to  time, 
they  should  be  reported  ;  —  but  the  legislature,  when 
constituted,  were  to  have  authority  to  alter  them  as 
they  should  think  fit. 


304  THE  FEDERAL  CONSTITUTION.  [Book  III. 

Magistrates  and  other  civil  officers  were  to  be  ap- 
pointed by  the  Governor,  previous  to  the  organiza- 
tion of  the  General  Assembly,  for  the  preservation 
of  peace  and  good  order.  After  the  organization  of 
the  General  Assembly,  the  powers  and  duties  of 
magistrates  and  other  civil  officers  were  to  be  regu- 
lated and  defined  by  the  legislature,  but  their  ap- 
pomtment  was  to  remain  with  the  Governor. 

For  the  prevention  of  crimes  and  injuries,  the 
laws  to  be  adopted  or  made  were  to  have  force  in  all 
parts  of  the  district,  and  for  the  execution  of  process, 
crimmal  and  civil,  the  Governor  was  to  make  proper 
divisions  of  the  territory,  and  to  lay  out  the  portions 
where  the  Indian  titles  had  been  extinguished,  from 
tmie  to  time,  into  counties  and  townships,  subject  to 
future  alteration  by  the  legislature. 

As  soon  as  there  shoidd  be  five  thousand  free  male 
inhabitants,  of  full  age,  in  the  district,  upon  giving 
proof  thereof  to  the  Governor,  they  were  to  receive 
autharity  to  elect  representatives  from  their  counties 
or  townships,  to  represent  them  in  the  General  As- 
sembly. For  every  five  hundred  male  inhabitants, 
there  was  to  be  one  representative ;  and  so  on  pro- 
gressively the  right  of  representation  was  to  increase, 
imtil  the  number  of  representatives  should  amount 
to  twenty-five,  after  which  theii'  numbers  and  pro- 
portions were  to  be  regulated  by  the  legislature. 
The  qualifications  of  a  representative  were  to  be  pre- 
vious citizenship  in  one  of  the  United  States  for 
three  years,  and  residence  in  the  district,  or  a  resi- 
d(nice  of  three  years  in  the  district,  with  a  fee-simple 


Cii.  v.]  THE   CONTEDERATION.  305 

estate,  in  either  case,  of  two  hundred  acres  of  land 
within  the  district.  The  qualifications  of  electors 
were  to  be  a  freehold  in  fifty  acres  of  land  in  the 
district,  previous  citizenship  in  one  of  the  United 
States,  and  residence  in  the  district,  or  the  like  free- 
hold and  two  years'  residence  in  the  district. 

The  Ordinance  then  proceeded  to  state  certam  fun- 
damental articles  of  compact  between  the  original 
States  and  the  people  and  States  in  the  territor}-, 
which  were  to  remam  unalterable,  except  by  com- 
mon consent.  The  first  provided  for  fi-eedom  of  re- 
ligious opinion  and  worship.  The  second  provided 
for  the  right  to  the  "writ  of  habeas  coiyus  ;  for  trial 
by  jury;  for  a  proportionate  representation  in  the 
legislature;  for  judicial  proceeduigs  according  to  the 
course  of  the  common  law;  for  offences  not  capital 
being  bailable ;  for  fines  being  moderate,  and  pmi- 
ishments  not  cruel  nor  unusual ;  for  no  man's  being 
deprived  of  his  liberty  or  property,  but  by  the  judg- 
ment of  his  peers  or  the  law  of  the  land ;  for  full 
compensation  for  property  taken  or  services  demanded 
for  the  public ;  and  that  no  law  should  ever  be  made, 
or  have  force  m  the  territory,  that  should  in  any 
manner  whatever  interfere  with  or  affect  private  con- 
tracts or  engagements,  pre\iously  formed,  bona  fide 
and  without  fraud.  The  tliird  provided  for  the  en- 
couragement of  religion  and  education,  for  schools, 
and  for  good  faith  towards  the  rights  and  property 
of  the  Indian  tribes.  The  fourth  provided  that  the 
territory  and  the  States  to  be  formed  therem  should 
for  ever  remain  a  part  of  the  Confederacy,  subject  to 

VOL.  I  39 


306  THE  FEDERAL  CONSTITUTION.  [Book  HI 

the  constitutional  authority  of  Congress ;  that  the 
inhabitants  should  be  liable  to  be  taxed  proportion- 
ately for  the  public  expenses;  that  the  legislature 
in  the  territory  should  never  interfere  with  the  pri- 
mary disposal  of  the  soil  by  Congress,  nor  with  their 
regulations  for  securing  the  title  to  purchasers ; 
that  no  tax  should  be  imposed  on  lands,  the  prop- 
erty of  the  United  States ;  that  non-resident  pro- 
prietors should  not  be  taxed  more  than  residents; 
and  that  the  navigable  waters  leading  into  the  Mis- 
sissippi and  St.  Lawrence,  and  the  carryhig-places 
between  them,  should  be  common  highways  and  for 
ever  free. 

The  fifth  provided,  that  there  should  be  formed  in 
the  territory  not  less  than  three,  nor  more  than  five 
States,  with  certain  boundaries ;  and  that  whenever 
any  of  the  States  should  contain  sixty  thousand  free 
inhabitants,  such  State  should  be  (and  might  be  be- 
fore) admitted  by  its  delegates  into  Congress,  on  an 
equal  footing  with  the  origmal  States  m  all  respects 
whatever,  and  should  be  at  liberty  to  form  a  perma- 
nent constitution  and  State  government,  provided  it 
should  be  republican,  and  in  conformity  with  these 
articles  of  compact. 

The  sixth  provided,  that  there  should  be  neither 
slavery  nor  involuntary  servitude  in  the  territory, 
otherwise  than  in  the  punishment  of  crimes;  but 
that  fugitives  owing  service  in  other  States  might 
be  reclaimed. 

American  legislation  has  never  acliieved  any  thing 
more  admirable,  as  an  mternal  government,  than  this 


Ch.  v.]  the  confederation.  307 

comprehensive  scheme.  Its  provisions  concerning 
the  distribution  of  property,  the  principles  of  civil 
and  religious  liberty  which  it  laid  at  the  foundation 
of  the  communities  smce  estabhshed  under  its  sway, 
and  the  efficient  and  simple  organization  by  which  it 
created  the  first  machinery  of  civil  society,  are  wor- 
thy of  all  the  praise  that  has  ever  attended  it.  It 
was  not  a  plan  devised  in  the  closet,  upon  theo- 
retical principles  of  abstract  fitness.  It  was  a  con- 
stitution of  government  drawn  by  men  who  imder- 
stood,  from  experience,  the  practical  working  of  the 
principles  which  they  undertook  to  embody.  Those 
prmciples  were,  it  is  true,  to  be  applied  to  a  state  of 
society  not  then  formed ;  but  they  were  taken  from 
states  of  society  in  which  they  had  been  tried  with 
success.  The  equal  division  of  property;  general, 
not  universal  sufi'rage,  but  a  sufi'rage  guarded  by 
some  degree  of  interest  in  society ;  representati"\^e  gov- 
ernment ;  the  division  of  the  three  grand  departments 
of  political  power ;  freedom  of  religious  opinion  and 
worship ;  the  haheas  corpus,  trial  by  jury,  and  the 
course  of  the  common  law;  the  right  to  be  bailed 
for  offences  not  capital,  and  the  prohibition  of  im- 
moderate fines  and  cruel  or  unusual  punishments; 
the  great  principle  of  compensation  for  property  or 
service  demanded  by  the  public,  and  the  legislative 
in'vdolabLlity  of  contracts ;  the  encouragement  of 
schools  and  the  means  of  education, — were  all  taken 
from  the  ancient  or  recent  constitutions  of  States, 
from  which  the  greater  part  of  the  inhabitants  of  the 
new  territory  would  necessarily  come.    A  community 


308  THE  FEDERAL  CONSTITUTION.  [Book  III 

founded  on  these  principles  was  predestined  to  pros- 
perity and  happiness. 

But  it  was  in  the  provisions  of  the  Ordinance  rela- 
tive to  the  admission  into  the  Union  of  the  new  States 
to  be  formed  upon  this  territory,  that  the  relation  be- 
tween the  existing  government  of  the  United  States 
and  its  great  dependency  was  afterwards  fomid  to  in- 
volve serious  difficulties.  The  Union  was  at  that 
time  a  confederacy  of  thirteen  States,  originally  formed 
mainly  with  reference  to  the  exigencies  of  the  war  ; 
and,  although  the  Articles  of  Confederation  had  been 
ratified  under  circumstances  which  gave  to  the  United 
States  the  authority  to  acquire  this  property,  they 
had  vested  in  Congress  no  power  to  enlarge  the  Con- 
federacy by  the  admission  of  new  States.  Yet  the 
Ordinance  undertook  to  declare  that  new  States 
should  be  admitted  into  the  Congress  of  the  United 
States  on  an  equal  footing  with  the  existing  States 
in  all  respects  whatever,  without  proposing  to  sub- 
mit that  question  to  the  original  parties  to  the  Con- 
federacy. 

It  does  not  appear  from  contemporary  evidence 
that  this  difficulty  attracted  public  attention,  at  the 
time  of  the  passage  of  the  Ordinance.  In  the  year 
1787,  the  Confederation  was  laboring  under  far  more 
pressing  and  alarming  defects  than  the  want  of  strict 
constitutional  power  to  create  new  States.  Pub- 
lic attention  was  consequently  more  engaged  with 
the  consideration  of  evils  which  affected  the  pros- 
perity of  the  original  States  themselves,  than  with 
the  destiny  of  the  new  communities,  or  the  method 


Ch.  v.]  the  confederation.  309 

by  which  they  were  to  be  brought  mto  the  Union. 
It  was  not  immediately  perceived,  also,  that  a  prop- 
erty, capable  at  no  distant  day  of  becoming  a  vast 
mine  of  wealth  to  the  United  States,  as  a  great  and 
independent  revenue,  had  come  under  the  manage- 
ment of  a  smgle  body  of  men,  constituted  originally 
without  reference  to  such  a  trust,  and  mth  no  de- 
clared constitutional  provisions  for  its  administration. 
When,  however,  the  Constitution  was  in  the  process 
of  formation,  the  necessity  for  provisions  under  which 
Congress  could  dispose  of  the  public  lands,  and  by 
which  new  States  could  be  admitted  into  the  Union, 
was  at  once  felt  and  conceded  on  all  sides, ^ 

Far  more  serious  difficulties,  however,  attended  the 
management  by  the  Confederation  of  the  mterests  of 
the  Western  country; — difficulties  which  commenced 
immediately  after  the  Peace,  and  continued  to  increase, 
until  the  course  taken  by  Congress  had  nearly  lost  to 
the  Union  the  whole  of  that  immense  region  which 
now  pours  its  commerce  down  the  INIississippi  and  its 
great  tributary  w^aters.  These  difficulties  sprang  from 
the  inherent  weakness  of  the  federal  government,  — 
from  the  absolute  incapacity  of  Congress,  constituted 
as  it  was,  to  deal  wisely,  safely,  and  efficiently  with 
the  foreign  relations  of  the  comitry  and  its  internal 
affairs,  under  the  delicate  and  critical  cu'cumstances 
in  which  it  was  then  placed.  After  the  Treaty 
of  Peace,  the  Western  settlements,  flanked  by  the 
dependencies  of  Great  Britain  at  the  north  and  of 

1  See  Mr.  Madison's  notes  of      Elliot,  V.  128,  157,  190,  211,376. 
the  Debates  in  the  Confederation.       381 


310  THE  FEDERAL  CONSTITUTION.  [Book  HI 

Spaiii  at  the  south,  and  rapidly  filling  with  a  bold, 
adventurous,  and  somewhat  lawless  population,  whose 
ties  of  connection  with  the  Eastern  States  were  al- 
most sundered  by  the  remoteness  of  their  position 
and  the  difficulties  of  communication,  stood  upon  a 
pivot,  where  accident  might  have  thro-svn  them  out 
of  the  Union.  This  population  found  themselves 
seated  in  a  luxuriant  and  fertile  country,  capable  of  a 
threefold  greater  production  than  the  States  eastward 
of  the  Alleghany  and  Appalachian  Mountains,  and 
intersected  by  natural  water  communications  of  the 
most  ample  character,-  all  tending  to  the  great  high- 
way of  the  Mississippi.  A  soil  richer  than  any, over 
which  the  Anglo-Saxon  race  had  hitherto  spread  itself 
upon  this  continent,  in  any  of  its  temperate  climes  ; 
large  plams  and  meadows,  capable,  without  labor,  of 
supporting  millions  of  cattle ;  and  fields  destined  to 
vie  with  the  most  favored  lands  on  the  globe  in  the 
production  of  wheat,  were  already  accumulating  upon 
the  banks  of  their  great  rivers  a  weight  of  produce 
far  beyond  the  necessities  of  subsistence,  and  loudly 
demanding  the  means  of  reaching  the  markets  of  the 
world.  The  people  of  the  Atlantic  States  knew  little 
of  the  resources  or  situation  of  this  country.  They 
valued  it  chiefly  as  a  means  of  pa}dng  the  public 
debts  by  the  sale  of  its  lands ;  but  until  they  were  in 
imminent  danger  of  losing  it,  from  the  inefficiency 
of  the  national  government,  they  had  little  idea  of 
the  supreme  necessity  of  securing  for  it  an  outlet  to 
the  sea,  if  they  would  preserve  it  to  the  Union. 
Washington,  in  the  autumn  of  1784,  after  his  re 


Oh.  v.]  the  COKFEDEKATION.  311 

tii-ement  to  Mount  Vernon,  made  a  tour  into  the 
Western  country,  for  the  express  purpose  of  ascer- 
tammg  by  Avhat  means  it  could  be  most  effectually 
bound  to  the  Union.  The  policy  of  opening  com- 
munications eastward,  by  means  of  the  rivers  flowmg 
through  Virginia  to  the  Atlantic  Ocean  struck  liim 
at  once.  On  his  return,  he  addressed  a  letter  to  the 
Governor  of  the  State,  in  which  he  recommended  the 
appomtment  of  a  commission,  to  make  a  survey  of 
the  w^hole  means  of  natural  water  communication 
between  Lake  Erie  and  the  tide-w^aters  of  Vii'ginia. 
He  does  not  seem  at  this  time  to  have  considered  the 
navigation  of  the  Mississippi  as  of  great  importance ; 
but  he  thought  rather  that  the  opening  of  that  river 
w^ould  have  a  tendency  to  separate  the  Western  from 
the  Eastern  States.-^  A  year  later,  he  held  a  clear  opin- 
ion, that  its  navigation  ought  not  at  present  to  be 
made  an  object  by  the  United  States,  but  that  theu* 
true  policy  was  to  open  all  the  possible  avenues  be- 

1  His  recommendation  contem-  Creek,  and  of  the  Scioto,  and  of  all 
plated  a  survey  of  James  River  and  the  waters  east  and  west  of  the 
the  Potomac,  from  tide-water  to  Ohio,  which  invited  attention  by 
their  respective  sources  ;  then  to  their  proximity  and  the  ease  of 
ascertain  the  best  portage  between  land  transportation  between  them 
those  rivers  and  the  streams  capa-  and  the  James  and  Potomac  Rivers, 
ble  of  improvement  which  run  into  "These  things  being  done,"  he 
the  Ohio  ;  then  to  traverse  and  sur-  said,  "  I  shall  be  mistaken  if  prej- 
vey  those  streams  to  their  junction  udice  does  not  yield  to  facts,  jeal- 
with  the  Ohio ;  then,  passing  down  ousy  to  candor,  and  finally,  if  rea- 
the  Ohio  to  the  mouth  of  the  Mus-  son  and  nature,  thus  aided,  do  not 
kingum,  to  ascend  that  river  to  the  dictate  what  is  right  and  proper  to 
carrying-place  to  the  Cuyahoga;  be  done."  (Writings  of  Washing- 
then  down  the  Cuyahoga  to  Lake  ton,  IX.  65.)  This  suggestion 
Erie,  and  thence  to  Detroit.  He  was  adopted,  and  a  commission  ap- 
also  advised  a  survey  of  Big  Beaver  pointed. 


312  THE  FEDEEAL  CONSTITUTION.  [Book  III. 

tween  the  Atlantic  States  and  the  Western  territory, 
and  that,  nntil  this  had  been  done,  the  obstructions  to 
the  use  of  the  Mississippi  had  better  not  be  removed.-^ 
Those  obstructions,  however,  involved  the  hazard  of 
a  loss  of  the  territory  to  which  the  navigation  of  that 
river  had  already  become  extremely  important.  Their 
nature  is,  therefore,  now  to  be  explained. 

The  Treaty  of  Peace  with  Great  Britain  recognized, 
as  the  southern  boundary  of  the  United  States,  a  line 
dra^^ai  from  a  point  where  the  thirty-first  degree  of 
north  latitude  intersected  the  river  Mississippi,  along 
that  parallel  due  east  to  the  middle  of  the  river 
Appalachicola ;  thence  along  the  middle  of  that  river 
to  its  junction  with  the  Flint  River ;  thence  in  a 
straight  line  to  the  head  of  St.  Mary's  River;  and 
thence  down  the  middle  of  that  river  to  the  Atlantic 
Ocean.^  At  the  time  of  the  negotiation  of  this  treaty 
West  Florida  was  in  the  possession  of  Spain;  and 
a  secret  article  was  executed  by  the  British  and 
American  plenipotentiaries,  which  stipulated  that  in 
case  Great  Britain,  at  the  conclusion  of  a  peace  with 
Spain,  should  recover  or  be  put  in  possession  of 
West  Florida,  the  north  boundary  between  that  prov- 
ince and  the  United  States  should  be  a  line  drawn 
from  the  mouth  of  the  river  Yassous,  where  it  unites 
with  the  river  Mississippi,  due  east  to  the  river 
Appalachicola.^  The  treaty  also  stipulated,  that  the 
navigation  of  the  Mississippi,  from  its  source  to  the 

»  Writings,  IX.  03,   117-119.  3  Executed  November  30,  1782. 

A-Ugust  22,  1785.  Secret  Journals,  III.  338. 

2   A.uicle  II.     Journals,  IX.  26. 


Ch.  V.J  THE  COKFEDEEATION.  313 

ocean,  should  for  ever  remain  free  and  open  to  the 
subjects  of  Great  Britain  and  the  citizens  of  the 
United  States.-^ 

When  the  treaty  came  to  be  ratified  and  published, 
in  1784,  the  Spanish  government  was  already  ac- 
quainted with  this  secret  article.  Justly  assuming 
that  no  treaty  between  Great  Britam  and  the  United 
States  could  settle  the  boundaries  between  the  terri- 
tories of  the  latter  power  and  those  of  Spam,  or  give 
of  itself  a  right  to  na\dgate  a  river  passing  wholly 
through  their  dominions,  they  immediately  caused  it 
to  be  signified  to  Congress,  that,  until  the  limits  of 
Louisiana  and  the  two  Floridas  should  be  settled  and 
determined,  by  an  admission  on  the  part  of  Spain 
that  they  had  been  rightfully  described  m  the  Treaty 
with  England,  they  must  assert  their  territorial  claims 
to  the  exclusive  control  of  the  river ;  and  also,  that 
the  navigation  would  under  no  cu-cumstances  be  con- 
ceded, while  Spain  held  the  right  to  its  control.^  To 
accommodate  these  chfficulties.  Congress  resolved  to 
send  Mr.  Jay,  their  Secretary  of  Foreign  Affairs,  to 
Spain ;  but  his  departure  was  prevented  by  the  ar- 
rival in  the  United  States  of'  Don  Diego  Guardoqui, 
as  Minister  from  Spain,  charged  with  the  negotia- 
tion of  a  treaty.^ 

Preparatory  to  this  negotiation,  the  first  instruc- 
tion which  j\Ir.  Jay  received  from  Congress  was,  to 


•  Article  A^III.  Journals,  IX.  29.  3  Guardoqui  arrived  and  was  rec- 

2  June  25,  1784.     Communicat-      ognized  July  2, 1785.    Secret  Joui 

ed  to  Congress  November  19,  1784.       nals,  III.  563. 

Secret  Journals,  III.  517,  518. 
VOL.  I.  40 


314  THE  FEDERAL  CONSTITUTION.  [Book  IU 

insist  upon  the  right  of  the  United  States  to  the  ter- 
ritorial boundaries  and  the  free  navigation  of  the 
Mississippi,  as  settled  by  their  treaty  with  Great  Brit- 
ain.-^ Upon  this  pouit,  however,  the  Spanish  Min- 
ister was  immovable.  A  long  negotiation  ensued, 
in  which  he  evinced  entire  readuiess  to  make  a  lib- 
eral commercial  treaty  with  the  United  States,  con- 
ceding to  their  trade  very  important  advantages; 
but  at  the  same  time  refusing  the  right  to  use  the 
Mississippi.  Such  a  treaty  was  regarded  as  extremely 
important  to  the  United  States.  There  was  scarcely 
a  single  production  of  this  country  that  could  not 
be  advantageously  exchanged  in  the  Spanish  Euro- 
pean ports  for  gold  and  silver.  The  influence  of 
Spain  in  the  Mediterranean,  with  Portugal,  with 
France,  with  the  States  of  Barbary,  and  the  trade 
with  her  Canaries  and  the  adjacent  islands,  rendered 
a  commercial  alliance  with  her  of  the  utmost  impor- 
tance. That  importance  was  especially  felt  by  the 
Eastern  and  Middle  States,  whose  mfluence  in  Con- 
gress thus  became  opposed  to  the  agitation  of  the 
subject  of  opening  the  Mississippi.^  Indeed,  the  pre- 
vailing opinion  in  Congress,  at  this  tune,  was  for  not 
insistmg  on  the  right  of  navigation  as  a  necessary 
requisite  in  the  treaty  with  Spain ;  and  there  were 
some  important  and  influential  persons  in  that  body 
ready  to  agree  to  the  abandonment  of  the  right,  rath- 
er than  defer  longer  a  free  and  liberal  system  of  trade 

1  August  25, 1785.    Secret  Jour-      by  Mr.  Jay  to  Congress,  August 
nals.  III.  585,  586.  3,    178G.      Secret    Journals,    IV. 

2  See  the  communication  made      43. 


Ch.  v.] 


THE  CONFEDERATION. 


315 


with  a  power  able  to  give  conditions  so  advantageous 
to  the  United  States.^  The  Eastern  States  considered 
a  commercial  treaty  with  Spam  as  the  best  remedy 
for  their  distresses,  which  flowed,  as  they  believed, 
fi-om  the  decay  of  then:  commerce.  Two  of  the  Mid- 
dle States  joined  m  tliis  opmion.  Virginia,  on  the 
other  hand,  opposed  all  sniTcnder  of  the  right.^ 

In  this  posture  of  affair's,  Mr.  Jay  proposed  to 
Congress  a  middle  course.  Believmg,  as  Washing- 
ton contmued  to  believe,^  that  the  navigation  of  the 


1  Henry  Lee,  then  in  Congress, 
wrote  to  Washington  on  the  3d  of 
July,    1786,   as   follows:    "Your 
reasoning  is  perfectly  conformable 
to  the  prevalent   doctrine  on  that 
subject  in  Congress.     We  are  very 
solicitous   to   form   a   treaty   with 
Spain    for    commercial    purposes. 
Indeed,  no  nation  in  Europe  can 
give  us  conditions  so  advantageous 
to  our  trade  as  that  kingdom.    The 
carrying  business  they  are  like  our- 
selves in,  and  this  common  source 
of  difficulty  in  adjusting  commer- 
cial treaties  between  other  nations 
does    not   apply   to   America   and 
Spain.     But,  my  dear  General,  I 
do  not  think  you  go  far  enough. 
Rather  than  defer  longer  a  free  and 
liberal  system  of  trade  with  Spain, 
why  not  agree  to  the  exclusion  of 
the   Mississippi]     This   exclusion 
will  not,  cannot,  exist  longer  than 
the  infancy  of  the  Western  emi- 
grants.    Therefore,  to  these  peo- 
ple what  is  now  done   cannot  be 
important.     To  the  Atlantic  States 
it  is  highly  important ;  for  we  have 
no  prospect  of  bringing  to  a  con- 


clusion our  negotiations  with  the 
court  of  Madrid,  but  by  yielding 
the  navigation  of  the  Mississippi. 
Their  Minister  here  is  under  posi- 
tive instructions  on  that  point.  In 
all  other  arrangements,  the  Span- 
ish monarch  will  give  to  the  States 
testimonies  of  his  regard  and  friend- 
ship. And  I  verily  believe,  that,  if 
the  above  difficulty  should  be  re- 
moved, we  should  soon  experience 
the  advantages  which  would  flow 
from  a  connection  with  Spain." 
(Writings  of  Washington,  IX. 
173,  note.) 

2  Washington's  Writings,   IX. 
205,  206,  note. 

3  Washington  had  not  changed 
his  opinion,  at  the  time  of  these 
negotiations.  On  the  18th  of  June, 
1786,  he  wrote  to  Henry  Lee,  in 
answer  to  his  letter  above  quoted  : 
"The  advantages  with  which  the 
inland  navigation  of  the  rivers 
Potomac  and  James  is  pregnant, 
must  strike  every  mind  that  rea- 
sons upon  the  subject;  but  there 
is,  I  perceive,  a  diversity  of  senti- 
ment respecting   the  benefits  and 


:J16 


TIIE  FEDERAL  CONSTITUTION. 


[Book  m. 


Mississippi  was  not  at  that  time  very  important,  and 
that  it  would  not  become  so  for  twenty-five  or  thirty 
years,  he  suggested  that  the  treaty  should  be  limited 
to  that  period,  and  that  one  of  its  articles  should 
stipulate,  that  the  United  States  would  forbear  to  use 
the  navigation  of  the  river  below  their  territories  to 
the  ocean.  It  was  supposed  that  such  a  forbearance, 
carrying  no  surrender  of  the  right,  woidd,  at  the  ex- 
piration of  the  treaty,  leave  the  whole  subject  in  as 
favorable  a  position  as  that  in  which  it  now  stood. 
Besides,  the  only  alternative  to  obtainmg  such  an 
article  from  Spain  was  to  make  war  with  her,  and  en- 
force the  opening  of  the  river.     The  experiment,  at 


consequences  which  may  flow  from 
the  free  and  immediate  use  of  the 
Mississippi.  My  opinion  of  this 
matter  has  been  uniformly  the  same ; 
and  no  light  in  which  I  have  been 
able  to  consider  the  subject  is  likely 
to  change  it.  It  is,  neither  to  re- 
linquish nor  to  push  our  claim  to 
this  navigation,  but  in  the  mean 
while  to  open  all  the  communica- 
tions which  Nature  has  afforded  be- 
tween the  Atlantic  States  and  the 
Western  territory,  and  to  encour- 
age the  use  of  them  to  the  utmost. 
In  my  judgment,  it  is  matter  of  very 
serious  concern  to  the  well-being 
of  the  former  to  make  it  the  inter- 
est of  the  latter  to  trade  with  them  ; 
without  which,  the  ties  of  consan- 
guinity, which  are  weakening  every 
day,  will  soon  be  no  bond,  and  we 
shall  be  no  more,  a  few  years  hence, 
to  the  inhabitants  of  that  country, 
than  the  British  and  Spaniards  are 


at  this  day ;  not  so  much,  indeed, 
because  commercial  connections,  it 
is  well  known,  lead  to  others,  and 
united  are  difficult  to  be  broken. 
These  must  take  place  with  the 
Spaniards,  if  the  navigation  of  the 
Mississippi  is  opened.  Clear  I  am, 
that  it  ^yould  be  for  the  interest  of 
the  Western  settlers,  as  low  down 
the  Ohio  as  the  Big  Kenhawa,  and 
back  to  the  Lakes,  to  bring  their 
produce  through  one  of  the  chan- 
nels I  have  named  ;  but  the  way 
must  be  cleared,  and  made  easy 
and  obvious  to  them,  or  else  the 
ease  with  which  people  glide  down 
streams  will  give  a  different  bias  to 
their  thinking  and  acting.  When- 
ever the  nevir  States  become  so  pop- 
ulous and  so  extended  to  the  west 
ward  as  really  to  need  it,  there 
will  be  no  power  which  can  de- 
prive them  of  the  use  of  the  Mis- 
sissippi.     Why,  then,   should  wb 


Ch.  v.] 


THE   COKFEDERATION. 


317 


least,  it  was  argued,  would  do  no  injiuy,  and  might 
produce  much  good.^ 

These  arguments  prevailed,  so  far  as  to  cause  a 
change  in  Mr.  Jay's  instructions,  by  a  vote,  which 
was  deemed  by  him  sufficient  to  confer  authority  to 
obtain  such  an  article  as  he  had  suggested,  but  which 
was  clearly  unconstitutional.  Seven  States  agamst 
five  voted  to  rescmd  the  instructions  of  August  25, 
1785,  by  wliich  the  Secretary  had  been  directed  to 
insist  on  the  right  of  navigation,  and  not  to  conclude 
or  sign  any  treaty  until  he  had  communicated  it  to 
Congress.^      Mr.  Jay   accordingly   agreed   with   the 


prematurely  urge  a  matter  which 
is  displeasing,  and  may  produce 
disagreeable  consequences,  if  it  is 
our  interest  to  let  it  sleep?  It 
may  require  some  management  to 
quiet  the  restless  and  impetuous 
spirits  of  Kentucky,  of  whose  con- 
duct I  am  more  apprehensive  in 
this  business  than  I  am  of  all  the 
opposition  that  will  be  given  by 
the  Spaniards."  (IX.  172,  173.) 
On  the  26th  of  July  of  the  same 
year,  he  again  wrote  to  the  same 
gentleman,  expressing  the  same 
opinions;  and  on  the  31st  of  Oc- 
tober, he  said  that  these  senti- 
ments "  are  controverted  by  only 
one  consideration  of  weight,  and 
that  is,  the  operation  which  the  oc- 
clusion of  the  river  may  have  on 
the  minds  of  the  Western  settlers, 
who  will  not  consider  the  subject 
in  a  relative  point  of  view,  or  on  a 
comprehensive  scale,  and  may  be 
influenced  by  the  demagogues  of 
the  country  to  acts  of  extravagance 


and  desperation,  under  the  popular 
declamation,  that  their  interests 
are  sacrificed."  In  July,  1787,  he 
retained  the  same  views  as  to  the 
true  policy  of  the  different  sections 
of  the  country  interested  in  this 
question,  but  admitted  that,  from 
the  spirit  manifested  at  the  West, 
it  had  become  a  moot  point  to  de- 
termine, when  every  circumstance 
was  brought  into  view,  what  was 
best  to  be  done.  (IX.  172,  180, 
205,  261.) 

1  See  Mr.  Jay's  reasoning,  Se- 
cret Journals,  IV.  53,  54. 

2  August  29 , 1 786 .  Secret  Jour- 
nals, IV.  109,  110.  The  States 
which  voted  to  rescind  these  in- 
structions were  New  Hampshire, 
Massachusetts,  Rhode  Island,  Con- 
necticut, New  York,  New  Jersey, 
Pennsylvania,  and  Maryland  ;  Vir 
ginia.  North  and  South  Carolina, 
and  Georgia,  voted  not  to  rescind. 
Another  resolution  was  carried  on 
the  following  day  (August  30),  by 


318  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

Spanish  Minister  on  an  article  which  suspended  the 
use  of  the  Mississippi,  without  relinquishing  the 
right  asserted  by  the  United  States.^ 

While  these  proceedings  were  going  on,  and  be- 
fore the  vote  of  seven  States  in  Congress  had  been 
obtained  in  favor  of  the  present  suspension  of  this 
difficult  controversy,  an  occurrence  took  place  at 
Natchez,  which  aroused  the  jealousy  of  the  whole 
West.  A  seizure  was  made  there,  by  the  Spanish 
authorities,  of  certain  American  property,  which  had 
been  carried  down  the  river  for  shipment  or  sale  at 
New  Orleans.^  The  owner,  retummg  slowly  in  the 
autumn  to  his  home,  in  the  western  part  of  North 
Carolina,  by  a  tedious  land  journey  through  Ken- 
tucky, detailed  everywhere  the  story  of  }iis  wrongs 
and  of  the  loss  of  his  adventure.  The  news  of  this 
seizure,  as  it  circulated  up  the  valley  from  below, 
encountered  the  intelligence  commg  from  the  east- 
ward, that  Congress  proposed  to  surrender  the  pres- 
ent use  of  the  Mississippi.  Alarm  and  indignation 
fired  the  whole  population  of  the  Western  settle- 
ments. They  believed  themselves  to  be  on  the  point 
of  being  sacrificed  to  the  commercial  policy  of  the 

the  votes  of  seven  States,  instruct-  tvveen  the  29th  of  August,  the  date 
ing  the  Secretary  to  insist  on  the  of  the  rescinding  resolution,  and 
territorial  limits  or  boundaries  of  the  6th  of  October,  178G.  See  Mr. 
the  United  States,  as  fixed  in  the  Jay's  communication  to  Congress 
Treaty  with  Great  Britain,  and  not  under  the  latter  date,  Secret  Jour- 
to  form  any  treaty  with  the  Span-  nals,  IV.  297-301. 
ish  Minister,  unless  those  bounda-  2  This  seizure  was  made  on  the 
ries  were  acknowledged  and  sc-  6th  of  June,  1786.  Secret  Jour- 
cured.  Ibid.  Ill  -  116.  nals,  IV.  325. 
^  This  affreement  was  made  be- 


Ch.  v.]  the  confederation.  319 

Atlantic  States ;  and,  feeling  that  they  stood  in  the 
relation  of  colonists  to  the  rest  of  the  Union,  they 
held  language  not  unhke  that  which  the  old  colo- 
nies had  held  towards  England,  in  the  earlier  days 
of  the  great  controversy. 

They  surveyed  the  magnificent  region  which  they 
were  subduing  fi.-om  the  dominion  of  Nature ;  —  the 
inexhaustible  resources  of  its  soil  already  yielding  an 
abundance,  which  needed  only  a  free  avenue  to  the 
ocean  to  make  them  rich  and  prosperous ; — and  they 
felt  that  the  mighty  river  which  swept  by  them,  with 
a  volume  of  waters  capable  of  sustaining  the  navies 
of  the  world,  had  been  destined  by  Providence  as  a 
natural  channel  through  which  the  productions  of 
their  imperial  valley  should  be  made  to  swell  the 
commerce  of  the  globe.  But  the  Spaniard  was  seated 
at  the  outlet  of  this  noble  stream,  sullenly  refusing 
to  them  all  access  to  the  ocean.  To  hun  they  must 
pay  tribute.  To  enrich  him,  they  must  till  those 
luxuriant  lands,  which  gave,  by  an  almost  spontane- 
ous production,  the  largest  return  which  American 
labor  had  yet  reaped  under  the  industry  of  its  own 
fi;ee  hands.  Their  proud  spirits,  unaccustomed  to 
restraint,  and  expandmg  ui  a  liberty  unkno^Mi  in  the 
older  sections  of  the  country,  could  not  brook  this 
vassalage.  Into  the  comprehensive  schemes  of  states- 
men, who  sought  to  unite  them  with  the  East  by 
a  great  cham  of  internal  improvements,  and  thus 
to  blend  the  interests  of  the  West  with  the  com- 
mercial prosperity  of  the  whole  country,  they  were 
too  impatient,  and  too  intent  upon  the  engrossing 


320  THE  FEDEKAL  CONSTITUTION.  [Book  III 

object  of  their  o^vii  immediate  advantage,  to  be  able 
to  enter. 

AVliat,  they  exclamied,  could  have  induced  the 
legislatiu-e  of  the  United  States,  which  had  been 
applauded  for  their  assertion  and  defence  of  the 
rights  and  privileges  of  the  country,  so  soon  to  en- 
deavor to  subject  a  large  part  of  their  donunion  to  a 
slavery  worse  than  that  to  Avhich  Great  Britain  had 
presumed  to  subject  any  part  of  hers  ?  To  give  up 
to  the  Spaniards  the  greatest  share  of  the  fruits  of 
their  toils, — to  surrender  to  them,  on  their  own  terms,, 
the  produce  of'  that  large,  rich,  and  fertile  country, 
and  thus  to  enable  them  to  command  the  benefits  of 
every  foreign  market,  —  was  an  intolerable  thought 
What  advantage,  too,  would  it  be  to  the  Atlantic 
States,  when  Spain,  from  the  amazing  resources  of 
the  Mississippi,  could  undersell  them  in  every  part 
of  the  world]  Did  they  think  by  this  course  of 
policy  to  prevent  emigration  from  a  barren  country, 
loaded  with  taxes  and  impoverished  by  debts,  to  the 
most  luxuiious  and  fertile  soil  within  the  limits  of 
the  Union  ?  The  idea  was  vain  and  presumptu- 
ous. As  well  might  the  fishes  of  the  sea  be  pre- 
vented from  gathering  on  a  bank  that  afforded  them 
ample  nourishment.  The  best  and  largest  part  of  the 
United  States  was  not  thus  to  be  left  uncultivated ;  a 
home  for  savages  and  wild  beasts.  Pro\idence  had 
destined  it  for  nobler  purposes.  It  was  to  be  the 
abode  of  a  great,  prosperous,  and  cultivated  people, — 
of  Americans  in  feeling,  in  rights,  m  spirit,  mcapable 
of  becoming  the  bondmen  of  Spain,  while  the  rest 


Ch.  V.J 


THE  CONTEDERATIOK 


321 


of  their  countiy  remained  free.  Their  own  strength 
could  achieve  for  them  what  the  national  power  re- 
fused or  was  unable  to  obtain.  Twenty  thousand 
effective  men,  west  of  the  AUeghanies,  were  ready  to 
rush  to  the  mouth  of  the  Mississippi,  and  drive  the 
Spaniards  into  the  sea.  Great  Britain  stood  with 
open  arms  to  receive  them.  If  not  coimtenanced  and 
succored  by  the  federal  government,  their  allegiance 
would  be  thrown  off,  and  the  United  States  woidd 
find  too  late  that  they  were  as  ignorant  of  the  great 
valley  of  the  Mississippi,  as  England  was  of  the  Atlan- 
tic States  when  the  contest  for  independence  began.-^ 


1  See  the  documents  laid  before 
Congress,  April  13,  1787.  Secret 
Journals,  IV.  315-328.  On  the 
30th  of  January,  1787,  Mr.  Jesffer- 
6on  thus  writes  to  Mr.  Madison, 
from  Paris  :  "  If  these  transactions 
give  me  no  uneasiness,  I  feel  very 
differently  at  another  piece  of  intel- 
ligence, to  wit,  the  possibility  that 
the  navigation  of  the  Mississippi 
may  be  abandoned  to  Spain.  I 
never  had  any  interest  westward  of 
the  Alleghany ;  and  I  never  will 
have  any.  But  I  have  had  great 
opportunities  of  knowing  the  char- 
acter of  the  people  who  inhabit 
that  country ;  and  I  will  venture  to 
say,  that  the  act  which  abandons 
the  navigation  of  the  Mississippi 
is  an  act  of  separation  between  the 
Eastern  and  Western  country.  It 
is  a  relinquishment  of  five  parts 
out  of  eight  of  the  territory  of  the 
United  States ;  an  abandonment  of 
the  fairest  subject  for  the  payment 
of  our  public  debts,  and  the  chaining 

VOL.    I.  41 


those  debts  on  our  own  necks,  in 
perpetuam.  I  have  the  utmost  con- 
fidence in  the  honest  intentions  of 
those  who  concur  in  this  measure  ; 
but  I  lament  their  want  of  acquaint- 
ance with  the  character  and  physi- 
cal advantages  of  the  people,  who, 
right  or  wrong,  will  suppose  their 
interests  sacrificed  on  this  occasion 
to  the  contrary  interests  of  that 
part  of  the  Confederacy  in  posses- 
sion of  present  power.  If  they  de- 
clare themselves  a  separate  people, 
we  are  incapable  of  a  single  effort 
to  retain  them.  Our  citizens  can 
never  be  induced,  either  as  militia 
or  as  soldiers,  to  go  there  to  cut 
the  throats  of  their  own  brothers 
and  sons,  or  rather,  to  be  them- 
selves the  subjects  instead  of  the 
perpetrators  of  the  parricide.  Nor 
would  that  country  quit  the  cost 
of  being  retained  against  the  will 
of  its  inhabitants,  could  it  be  done. 
But  it  cannot  be  done.  They  are 
able  already  to  rescue  the  naviga- 


322  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

Such  was  the  feeling  that  prevailed  in  the  Western 
country,  as  soon  as  it  became  known  that  a  treaty 
was  actually  pending,  by  which  the  right  to  navigate 
the  Mississippi  might  be  suspended  for  a  quarter  of 
a  century.  That  it  should  have  been  accompanied 
by  acts  of  retaliation  and  outrage  against  the  prop- 
erty of  Spanish  subjects,  was  naturally  to  have  been 
expected.  General  George  Rogers  Clarke,  pretend- 
ing to  authority  from  the  State  of  Virginia,  under- 
took to  enlist  men  and  establish  a  garrison  at  Port 
St.  Vincennes,  ostensibly  for  the  protection  of  the 
district  of  Kentucky,  then  under  the  jurisdiction  of 
Virginia.  He  made  a  seizure  there  of  some  Spanish 
goods  for  the  purpose  of  clothing  and  subsisting  his 
men,  and  sent  an  officer  to  the  Illinois,  to  advise  the 
settlers  there  of  the  seizures  of  American  property 
made  at  Natchez,  and  to  recommend  them  to  retali- 
ate for  any  outrages  the  Spaniards  might  commit  in 
that  country.^ 

The  executive  of  Vhginia  disavowed  these  acts,  as 
soon  as  officially  informed  of  them ;  ordered  the  par- 
ties to  be  brought  to  punishment ;  and  sent  a  formal 


tion  of  the  Mississippi  out  of  the  thus  correct  our  error.     And  were 

hands  of  Spain,  and  to  add  New  I  to  permit  my  forebodings  to  go 

Orleans    to    their    own    territory.  one  step  further,  I  should  predict 

They  will  be  joined  by  the  inhab-  that  the  inhabitants  of  the  United 

itants  of   Louisiana.      This    will  States  would  force  their  rulers  to 

bring  on  a  war  between  them  and  take  the  affirmative  of  that  ques- 

Spain  ;  and  that  will  produce  the  tion.     I  wish  I  may  be  mistaken 

question  with  us,  whether  it  will  in  all  these  opinions."     (Jeffeison, 

not  be  worth  our  while  to  become  H.  87.) 

parties  with   them  in  the  war,  in  l  Secret  Journals,  IV.  311-313 

order  to  reunite  them  with  us,  and 


Ch.  V.J  THE  CONTEDEEATION.  323 

disclaimer,  through  their  delegates  in  Congress,  to 
the  Spanish  Minister.^  Guardoqui  was  not  disturbed. 
He  expected  these  occurrences,  and  mamtained  liis 
gi'ound,  refusing  to  yield  the  right  of  navigatmg 
the  river;  and  havmg  assented  to  Mr.  Jay's  pro- 
posal of  an  article  which  suspended  the  use  for  a  pe- 
riod of  twenty-five  years,  he  was  quite  ready  to  go  on 
and  conclude  the  treaty. 

The  people  of  the  Western  country,  howe^'er,  be- 
gan to  form  committees  of  correspondence,  m  order 
to  unite  their  counsels  and  interests.^  The  inhabit- 
ants of  Kentucky  sent  a  memorial  to  the  General 
Assembly  of  Virginia,  which  mduced  them  to  in- 
struct their  delegates  m  Congress  to  oppose  any 
attempt  to  surrender  the  right  of  the  United  States 
to  the  free  use  of  the  Mississippi,  as  a  dishonorable 
departiu'e  from  the  comprehensive  and  benevolent 
feeling  that  constituted  the  vital  prmciple  of  the 
Confederation,  and  as  provoking  the  just  resentment 
and  reproaches  of  the  Western  people,  whose  essen- 
tial rights  and  interests  would  be  thereby  sacrificed. 
They  also  instructed  their  delegates  to  urge  such 
negotiations  vnXli  Spam  as  would  obtain  her  consent 
to  regulations  for  the  mutual  and  common  use  of  the 
river.^  The  members  from  Vii'ginia,  with  one  excep- 
tion, concurred  in  the  policy  of  these  instructions,* 

1  February  28,  1787.  gress,  April   19,  1787.     Madison. 

2  Madison.      Elliot's    Debates,       Elliot's  Debates,  V.  103. 

V".  97.  4  Henry  Lee  did  not  approve  of 

3  These  instructions  were  adopt-      this    policy.      See    Washington's 
ed  in  November,  1786.    Pitkin,  II.       Works,  IX.  205,  note. 

y07.     They  were  laid  before  Con- 


324  THE  FEDEEAL  CONSTITUTION.  [Book  III. 

and  at  first  addressed  themselves  to  some  conciliator)' 
expedient  for  obviating  the  effect  of  the  vote  of  seven 
States. 

They  fii'st  rej)resented  to  Guardoqui  that  it  would 
be  extremely  impolitic,  both  for  the  United  States 
and  Spain,  to  make  any  treaty  which  should  have 
the  effect  of  shutting  up  the  Mississippi.  They 
stated  to  him,  that  such  a  treaty  could  not  be  en- 
forced ;  that  it  would  be  the  means  of  peopling  the 
Western  country  with  increased  rapidity,  and  would 
tend  to  a  separation  of  that  country  from  the  rest  of 
the  Union ;  that  Great  Britain  would  be  able  to  tuiii 
the  force  that  would  spring  up  there  against  Spanish 
America ;  and  that  the  result  would  be  the  creation 
of  a  power  in  the  valley  of  the  Mississippi  hostile 
both  to  Spain  and  the  United  States.  These  rep- 
resentations produced  no  impression.  The  Spanish 
Mmister  remained  firm  in  the  position  which  he  had 
held  from  the  first,  that  Spam  never  would  concede 
the  claim  of  the  United  States  to  navigate  the  river. 
He  answered,  that  the  result  of  what  had  been  urged 
was,  that  Congress  could  make  no  treaty  at  all,  and 
consequently  that  the  trade  of  the  United  States 
must  remain  liable  to  be  excluded  from  the  ports  of 
Spain.^ 

Foiled  in  this  quarter,  the  next  expedient,  for 
those  who  felt  the  necessity  of  preventing  such  a 


1  See  Madison's  account  of  two  Guardoqui  stated  that  he  had  had 

interviews  with  Guardoqui,  March  no  conference  with  Mr.  Jay  since 

13  and  19, 1787.  Elliot,  V.  98, 100.  the  previous   October,   and  never 

At  the   first  of  these  interviews.  expected  tp  confer  with  him  again. 


Ch.  v.]  the  COISTPEDERATION.  32.*^ 

treaty  as  had  been  contemplated,  was  to  gain  time, 
by  transferring  the  negotiation  to  Madrid ;  and  Mr. 
Madison  introduced  a  resolution  into  Congress  for 
this  purpose,  which  was  referred  to  the  Secretary  for 
Foreign  Affairs.-'  In  a  few  days,  the  Secretary  re 
ported  against  the  proposal,  and  nothmg  remained 
for  the  opponents  of  the  treaty,  but  to  attack  clii'ectly 
the  vote  of  seven  States,  under  which  the  Secretary 
had  acted  in  proceedmg  to  adjust  with  the  Spanish 
Minister  an  article  for  suspending  the  right  of  the 
United  States  to  the  common  use  of  the  river  below 
their  southern  boundary. 

The  Articles  of  Confederation  expressly  declared, 
that  the  United  States  should  not  enter  into  any 
treaty  or  alliance,  unless  nine  States  in  Congress  as- 
sented to  the  same.^  It  w^as  very  justly  contended, 
therefore,  that,  to  proceed  to  negotiate  a  treaty  au 
thorized  by  a  vote  of  only  seven  States,  would  expose 
the  United  States  to  great  embarrassment  with  the 
other  contracting  party,  since  the  vote  made  it  cer- 
tain that  the  treaty  could  not  be  constitutionally 
ratified ;  and  that  the  vote  itself,  having  passed  in  a 
case  requirmg  the  assent  of  nine  States,  was  not 
valid  for  the  purpose  intended  by  it.     This  was  not 

1  April    18,    1787.       Madison.  came    under    consideration,    Mr. 

Elliot,  V.  102.     On  the  next  day  Gorham  of  Massachusetts,  accord- 

(April  19)  the  instructions  of  Vir-  ing  to  Mr.  Madison,   avowed  his 

ginia  were  laid   before  Congress,  opinion,  that   the  shutting  of  the 

but  a  motion  to  refer  them  also  to  Mississippi  would  be  advantageous 

the  Secretary  was  lost,  Massachu-  to  the  Atlantic  States,  and  wislied 

setts  and  New  York  voting  against  to  see  it  shut.     Ibid.  103. 

it,  and  Connecticut  being  divided.  -  Article  IX. 
Ibid,      When    Mr.    Jay's    report 


326  THE  FEDERAL  CONSTITUTION.  [Book  IH 

denied ;  but  the  advocates  of  the  treaty,  by  means  of 
a  parliamentary  rule,  resisted  the  introduction  of  a 
resolution  to  rescind  the  vote  of  seven  States.'^ 

But  while  this  dangerous  subject  was  pending, 
the  affairs  of  the  country  had  taken  a  new  turn. 
The  Convention  at  Annapolis  had  been  held,  in 
the  autumn  of  1786,  and  the  Convention  called 
to  revise  the  system  of  the  federal  government  was 
to  meet  in  May,  1787.  It  had  become  sure  and 
plain,  that  a  large  increase  of  the  powers  of  the 
national  government  was  absolutely  essential  to  the 
continuance  of  the  Union  and  the  prosperity  of 
the  States.  Every  day  the  situation  of  the  country 
was  becoming  more  and  more  critical.  No  money 
came  into  the  federal  treasury ;  no  respect  was  paid 
to  the  federal  authority;  and  all  men  saw  and  ad 
mitted  that  the  Confederation  was  tottering  to  its 
fall.  Some  prominent  persons  in  the  Eastern  States 
were  suspected  of  leaning  towards  monarchy;  others 
openly  predicted  a  partition  of  the  States  into  two 
or  more  confederacies;  and  the  distrust  which  had 
been  created  by  the  project  for  closing  the  Missis- 
sippi rendered  it  extremely  probable,  that  the  Western 
country  at  least  would  be  severed  from  the  Union. 

The  advocates  of  that  project  recoiled,  therefore, 
from  the  dangers  which  they  had  unwittingly  created. 
They  saw,  that  the  crisis  required  that  harmony  and 
confidence  should  be  studiously  cherished,  now  that 
the  great  enterprise  of  remodelling  the  government 

1  Madison.     Elliot,  V.  104,  105. 


Ch.  v.]  the  confederation.  327 

upon  a  firmer  basis  was.  to  be  attenipted.  They  saw 
that  no  new  powers  could  be  obtained  for  the  Federal 
Constitution,  if  the  government  then  existing  were 
to  burden  itself  with  an  act  so  certain  to  be  the 
source  of  dissension,  and  so  likely  to  cause  a  dismem- 
berment of  the  Confederacy,  as  the  closing  of  the 
Mississippi.  Like  wise  and  prudent  men,  therefore, 
they  availed  themselves  of  the  expected  and  probable 
foraiation  of  a  new  government,  as  a  fit  occasion  for 
disposing  of  tliis  question ;  and  after  an  effort  to 
quiet  the  apprehensions  that  had  been  aroused,  the 
whole  matter  was  postponed,  by  general  consent,  to 
await  the  action  of  the  great  Convention  of  May, 
1787.-^  After  the  Constitution  had  been  formed 
and  adopted,  the  negotiation  was  formally  referred 
to  the  new  federal  government  which  was  about  to 
be  organized,  in  March,  1789,  with  a  declaration  of 
the  opmion  of  Congress  that  the  free  navigation  of 
the  river  Mississippi  was  a  clear  and  essential  right 
of  the  United  States,  and  ought  to  be  so  considered 
and  supported.^ 

1  Ibid. 

2  September  16,  1788.     Secret  Journals,  IV.  449  - 454. 


CHAPTER   VI. 

1783-1787. 

Decay  and  Failure  of  the  Confederation.  —  Progress  of  Opin- 
ion.—  Steps  which  led  to  the  Convention  of  1787. — Influ- 
ence AND  Exertions  of  Hamilton.  —  Meeting  of  the  Conven- 
tion. 

The  prominent  defects  in  the  Confederation,  which 
have  been  described  in  the  previous  chapters,  and 
which  were  so  rapidly  developed  after  the  treaty  of 
1783,  made  it  manifest,  that  a  mere  league  between 
independent  States,  with  no  power  of  direct  legisla- 
tion, was  not  a  government  for  a  country  like  this, 
in  a  time  of  peace.  They  showed,  that  this  compact 
between  the  States,  without  any  central  arbiter  to 
declare  or  power  to  enforce  the  duties  which  it  in- 
volved, could  not  long  continue.  It  had,  indeed, 
answered  the  great  purpose  of  forming  the  Union, 
by  bringing  the  States  into  relations  with  each  other, 
the  contuiuance  of  which  was  essential  to  liberty; 
since  nothing  could  follow  the  rupture  of  those  rela- 
tions but  the  reestablishment  of  European  power,  or 
the  native  despotism  which  too  often  succeeds  to  civil 
commotion.  By  creating  a  corporate  body  of  con- 
federate States,  and  by  enabling  them  to  go  into  the 


Ch.  VI.]  THE*  CONFEDERATION.  329 

money-markets  of  Europe  for  the  means  of  carrying 
on  and  concluding  the  war,  the  Confederation  had 
made  the  idea  and  the  necessity  of  a  Union  familiar 
to  the  popular  mind.  But  the  purposes  and  objects 
of  the  war  were  far  less  complex  and  intricate  than 
the  concerns  of  peace.  It  was  comparatively  easy 
to  borrow  money.  It  was  another  thing  to  pay  it. 
The  federal  power,  under  the  Confederation,  had 
little  else  to  do,  before  the  peace,  than  to  admin- 
ister the  concerns  of  an  army  in  the  field,  and  to 
attend  to  the  foreign  relations  of  the  country,  as  yet 
not  complicated  with  questions  of  commerce.  But 
the  vast  duties,  capable  of  being  discharged  by  no 
other  power,  which  came  rapidly  into  existence  be- 
fore the  creation  of  the  machinery  essential  to  their 
performance,  exhibited  the  Confederation  in  an  alarm- 
ing attitude. 

It  was  found  to  be  destitute  of  the  essence  of  po- 
litical sovereignty,  —  the  power  to  compel  the  indi- 
vidual inhabitants  of  the  country  to  obey  its  decrees. 
It  was  a  system  of  legislation  for  States  in  their  cor- 
porate and  collective  capacities,  and  not  for  the  indi- 
viduals of  whom  those  States  were  composed.  It 
could  not  levy  a  dollar  by  way  of  impost  or  assess- 
ment upon  the  property  of  a  citizen.  It  had  no 
means  of  annulling  the  action  of  a  State  legislature, 
which  conflicted  with  the  lawful  and  constitutional 
requirements  of  Congress.  It  made  treaties,  and  was 
forced  to  stand  still  and  see  them  violated  by  its 
own  members,  for  whose  benefit  they  had  been  made. 
It  owed  an  enormous  debt,  and  saw  itself,  year  by 

VOL.  I.  42 


330  TIIE  FEDERAL  CONSTITUTION.  [Book  III. 

year,  growing  more  and  more  unable  to  liquidate 
even  the  annually  increasing  interest.  It  stood  in 
the  relation  of  a  protector  to  the  principles  of  repub- 
lican liberty  on  which  the  institutions  of  the  States 
were  founded,  and  on  the  first  occurrence  of  dan- 
ger, it  stretched  forward  only  a  palsied  arm,  to 
which  no  man  could  look  for  succor.  It  under- 
took to  rescue  commerce  from  the  blighting  effects 
of  foreign  policy,  and  failed  to  achieve  a  single 
conspicuous  and  important  advantage.  Every  day 
it  lost  something  of  respect  abroad  and  of  confi- 
dence at  home,  until  all  men  saw,  with  Washing- 
ton, that  it  had  become  a  great  shadow  without 
the  substance  of  a  government;  while  few  could 
even  conjecture  what  was  to  rise  up  and  sup- 
plant it. 

Few  men  could  see,  amidst  the  decay  of  empire 
and  the  absolute  negation  of  all  the  vital  and  essen- 
tial functions  of  government,  what  was  to  infuse  new 
life  into  a  system  so  nearly  effete.  Yet  the  elements 
of  strength  existed  in  the  character  of  the  people; 
in  the  assimilation,  which  might  be  produced,  in  the 
lapse  of  years,  by  a  common  language,  a  common 
origin,  and  a  common  destiny; — in  the  almost  bound- 
less resources  of  the  country; — and,  above  all,  in  the 
principles  of  its  ancient  local  institutions,  that  were 
capable,  to  an  extent  not  then  conceived,  of  expan- 
sion and  application  to  objects  of  far  greater  magni- 
tude than  any  which  they  had  yet  embraced.  Through 
what  progress  of  opinion  the  people  of  this  country 
were  enabled  to  grasp  and  combine  these  elements 


Ca.  VI.]  THE   CONFEDERATION.  331 

into  a  new  system,  which  could  satisfy  theii-  wants, 
we  must  now  inquire. 

In  this  inquiry,  the  student  of  pohtical  history 
should  never  fail  to  observe,  that  the  great  difficulty 
of  the  case,  which  made  it  so  complex  and  embar- 
rassing, arose  from  the  separate,  sovereign,  and  inde- 
pendent existence  of  the  States.  The  formation  of 
new  constitutions,  in  countries  not  thus  divided,  in- 
volves only  the  adaptation  of  new  institutions  and 
forms  to  the  genius,  the  laws,  and  the  habits  of  the 
people.  The  monarchy  of  France  has,  in  our  day, 
been  first  remodelled,  and  afterwards  swept  from  the 
face  of  Europe,  to  be  followed  by  a  rei3ublican  consti- 
tution, which  has  in  its  turn  been  crushed  and  super- 
seded. But  France  is  a  country  that  has  long  been 
subjected  to  as  com]3lete  and  powerful  a  system  of 
centralization  as  has  existed  anywhere  since  the 
most  energetic  period  of  the  Eoman  empire;  and 
whether  its  institutions  of  government  have  or  have 
not  needed  to  be  changed,  as  they  have  been  from 
time  to  time,  those  changes  have  been  made  in  a 
country  in  which  an  entire  political  unity  has  greatly 
facilitated  the  operation. 

In  the  United  States,  on  the  contrary,  a  federal 
government  was  to  be  created;  and  it  was  to  be 
created  for  thu'teen  distinct  communities;  —  a  gov- 
ernment that  should  not  destroy  the  political  sover- 
eignties of  the  States,  and  should  yet  mtroduce  a  new 
sovereignty,  formed  by  means  of  powers,  whose  sur- 
render by  the  States,  instead  of  weakening  their  pres- 
ent strength,  would  rather  develop  and  increase  it 


332  THE  FEDEKAL  CONSTITUTION.  [Book  UL 

This  peculiar  difficulty  may  be  constantly  traced, 
amidst  all  the  embarrassments  of  the  period  in  which 
the  fundamental  idea  of  the  Constitution  was  at 
length  evolved. 

The  progress  of  opinion  and  feeling  in  this  coun- 
try, on  the  subject  of  its  government,  from  the  peace 
of  1783  to  the  year  1787,  may  properly  be  intro- 
duced by  a  brief  statement  of  the  political  tendencies 
of  two  principal  classes  of  men.  All  contemporary 
evidence  assures  us  that  this  was  a  period  of  great 
pecuniary  distress,  arising  from  the  depreciation  of 
the  vast  quantities  of  paper  money  issued  by  the  Fed- 
eral and  State  governments ;  from  rash  speculations  ; 
from  the  uncertain  and  fluctuating  condition  of  trade; 
and  from  the  great  amount  of  foreign  goods  forced 
into  the  country  as  soon  as  its  ports  were  opened. 
Naturally,  in  such  a  state  of  things,  the  debtors  were 
disposed  to  lean  in  favor  of  those  systems  of  govern- 
ment and  legislation  which  would  tend  to  relieve  or 
postpone  the  payment  of  their  debts;  and  as  such 
relief  could  come  only  from  their  State  governments, 
they  were  naturally  the  friends  of  State  rights  and 
State  authority,  and  were  consequently  not  friendly 
to  any  enlargement  of  the  powers  of  the  Federal 
Constitution.  The  same  causes  which  led  individu- 
als to  look  to  legislation  for  irregular  relief  from  the 
burden  of  their  private  contracts,  led  them  also  to 
regard  public  obligations  with  similar  impatience. 
Opposed  to  this  numerous  class  of  persons  were  all 
those  who  felt  the  high  necessity  of  preserving  invio- 
late every  public  and  private  obligation ;  who  saw 


Ch.  VI.] 


THE   CONFEDERATION. 


333 


that  the  separate  power  of  the  States  could  not  ac- 
complish what  was  absolutely  necessary  to  sustain 
both  public  and  private  credit;  and  they  were  as 
naturally  disposed  to  look  to  the  resources  of  the 
Union  for  these  benefits,  as  the  other  class  were  to 
look  m  an  opposite  dii-ection.  These  tendencies  pro- 
duced, in  nearly  every  State,  a  struggle,  not  as  be- 
tween two  organized  parties,  but  one  that  was  all 
along  a  contest  for  supremacy  between  opposite  opin- 
ions, in  which  it  was  at  one  time  doubtful  to  which 
side  the  scale  would  tui'n.^ 


1  "The  war,  as  you  have  very 
justly  observed,"  General  Wash- 
ington wrote  to  James  Warren  of 
Massachusetts,  in  October,  1785, 
"  has  terminated  most  advanta- 
geously for  America,  and  a  fair 
field  is  presented  to  our  view  ;  but 
I  confess  to  you,  my  dear  Sir,  that 
I  do  not  think  we  possess  wisdom 
or  justice  enough  to  cultivate  it 
properly.  Uliberality,  jealousy, 
and  local  policy  mix  too  much  in 
all  our  public  counsels  for  the  good 
government  of  the  Union.  In  a 
word,  the  Confederation  appears  to 
me  to  be  little  more  than  a  shadow 
without  the  substance,  and  Con- 
gress a  nugatory  body,  their  ordi- 
nances being  little  attended  to. 
To  me  it  is  a  solecism  in  politics  ; 
indeed,  it  is  one  of  the  most  ex- 
traordinary things  in  nature,  that 
we  should  confederate  as  a  nation, 
and  yet  be  afraid  to  give  the  rulers 
of  that  nation  (who  are  the  crea- 
tures of  our  own  making,  appoint- 
ed for  a  limited  and  short  duration, 


and  who  are  amenable  for  every 
action  and  may  be  recalled  at  any 
moment,  and  are  subject  to  all  the 
evils  which  they  may  be  instru- 
mental in  producing)  sufficient 
powers  to  order  and  direct  the  af- 
fairs of  the  same.  By  such  policy 
as  this,  the  wheels  of  government 
are  clogged,  and  our  brightest  pros- 
pects, and  that  high  expectation 
which  was  entertained  of  us  by  the 
wondering  world,  are  turned  into 
astonishment ;  and,  from  the  high 
ground  on  which  we  stood,  we  are 
descending  into  the  vale  of  confu- 
sion and  darkness. 

"  That  we  have  it  in  our  power 
to  become  one  of  the  most  respect- 
able nations  upon  earth,  admits,  in 
my  humble  opinion,  of  no  doubt, 
if  we  would  but  pursue  a  wise, 
just,  and  liberal  policy  towards  one 
another,  and  keep  good  faith  with 
the  rest  of  the  world.  That  our 
resources  are  ample  and  increas- 
ing, none  can  deny  ;  but  while 
they   are    grudgingly   applied,   ox 


334  THE  FEDEKAL  CONSTITUTION.  [Book  IH 

The  three  most  important  centres  of  opinion  in 
the  Union,  before  the  formation  of  the  Constitution, 
were  Massachusetts,  Virginia,  and  New  York.^  The 
public  proceedings  of  each  of  them,  in  the  order  of 
time,  on  the  subject  of  enlarging  the  federal  powers, 
are,  therefore,  important  to  a  just  understanding  of 
the  course  of  events  which  ended  in  the  calling  of 
the  Convention. 

The  legislature  of  Massachusetts  was  assembled  in 
the  summer  of  1785.  The  proposal  of  Congress, 
made  to  the  States  m  1784,  to  grant  the  power  of 
regulating  trade,  had  been  responded  to  by  only  four 
of  the  States,  and  the  negotiations  in  Europe  were 
failing  from  the  want  of  it.  Great  uneasiness  and 
distress  pervaded  all  the  commercial  classes,  and  ex- 
tended to  every  other  class  capable  of  being  affected 
by  a  state  of  things  in  which  a  large  balance,  occa- 
sioned by  the  extravagant  importation  and  use  of 


not  applied  at  all,  we  give  a  vital  pervades  these  States  is  not  to  be 
stab  to  public  faith,  and  shall  sink,  repressed.  It  behooves  us,  then, 
in  the  eyes  of  Europe,  into  con-  to  establish  just  principles ;  and 
tempt.  this  cannot,  any  more  than  other 
"  It  has  long  been  a  speculative  matters  of  national  concern,  be 
question  among  philosophers  and  done  by  thirteen  heads  differently 
wise  men,  whether  foreign  com-  constructed  and  organized.  The 
merce  is  of  real  advantage  to  any  necessity,  therefore,  of  a  control- 
country  ;  that  is,  whether  the  lux-  ling  power,  is  obvious ;  and  why  it 
ury,  effeminacy,  and  corruptions  should  be  withheld  is  beyond  my 
which  are  introduced  along  with  it  comprehension."  Writings,  IX. 
are  counterbalanced  by  the  conven-  139-  141. 

ience  and  wealth  which  it  brings.  i  They  are  named  in  this  order. 

But  the  decision  of  this  question  is  because  it  represents  the  order  in 

of  very  little  importance  to  us.    We  which  they  respectively  acted  upon 

have   abundant  reason  to   be  con-  the    enlargement    of   the    federal 

vinced  that  the  spirit  of  trade  which  powers. 


Ch.  VI.] 


THE   COKFEDERATION. 


335 


foreign  manufactures,  was  thrown  against  the  coun- 
try. ,  The  money  of  the  State  was  rapidly  drawn  off 
to  meet  this  balance,  which  its  other  exliausted 
means  of  remittance  could  not  satisfy.  It  was  im- 
possible for  the  State  to  recover  its  former  prosperity, 
while  Great  Britain  and  other  nations  continued  the 
commercial  systems  which  they  had  adopted.  It  had 
become  plain  to  the  comprehension  of  all  intelligent 
persons  concerned  in  trade,  that  nothmg  could  break 
up  those  systems  so  long  as  the  United  States  were 
destitute  of  the  same  power  to  regulate  their  foreign 
trade,  by  admitting  or  excluding  foreign  vessels  and 
cargoes  according  to  their  interests ;  and  it  needed 
only  the  popular  expression  of  this  palpable  truth, 
enforced  by  a  clear  and  decided  executive  message, 
to  induce  the  legislature  to  act  upon  it.-^     Governor 


1  One  of  the  necessary  and  im- 
mediate effects  of  the  Revolution 
of  course  was,  the  loss  of  the  exclu- 
sive commercial  advantages  which 
this  country  had  enjoyed  with 
Great  Britain  and  her  dependen- 
cies ;  and  the  prohibitory  acts  and 
impositions,  which  fell  with  their 
full  weight  on  the  American  trade, 
after  the  peace,  were  particularly 
disastrous  to  the  trade  of  Massa- 
chusetts. The  whale  fishery,  a 
business  of  great  importance,  had 
brought  into  the  Province,  before 
the  war,  172,000  guineas  per  an- 
num, giving  employment  to  Amer- 
ican seamen,  and  not  requiring  the 
use  of  any  foreign  materials,  ex- 
cept a  small  quantity  of  cordage. 
A  duty  was  now  laid  on  whale  oil 


in  England  of  jG18  per  tun.  In 
addition  to  the  loss  thus  sustained, 
the  exportation  of  lumber  and  pro- 
visions in  American  bottoms  to  the 
West  Indies  was  entirely  prohib- 
ited. Another  great  inconvenience, 
which  came  in  fact  to  be  intolera- 
ble, was  the  vast  influx  of  British 
goods,  consigned  to  English  fac- 
tors for  sale,  depriving  the  native 
merchants,  manufacturers,  and  ar- 
tisans of  the  market.  At  the  same 
time,  the  revenue  of  the  State,  de- 
rived from  impost  and  excise  du- 
ties and  a  tax  on  auctions  of  one 
per  cent.,  fell  short  of  the  annual 
interest  on  the  private  debt  of  the 
State,  30,000  pounds  (currency) 
per  annum,  and  a  tax  of  20,000 
pounds  (currency)   was   computed 


336 


THE  FEDERAL  CONSTITUTION.  [Book  HI, 


Bowdoiii  gave  the  necessary  impulse,  and  suggested 
the  appomtment  of  special  delegates  from  the  States 
to  settle  and  define  the  powers  with  which  Congress 
ought  to  be  invested.-^ 

This  message  caused  the  adoption  of  the  first  reso- 
lution, passed  by  the  legislature  of  any  State,  declar- 
ing the  Articles  of  Confederation  to  be  uiadequate 
to  the  great  purposes  which  they  were  originally 
designed  to  effect,  and  recommending  a  convention 
of  delegates  from  all  the  States,  for  the  purpose  of 
revising  them,  and  reporting  to  Congress  how  far  it 
might  be  necessary  to  alter  or  enlarge  the  powers  of 


to  be  necessary  to  cancel  the  debt, 
principal  and  interest,  in  fifteen 
years,  and  pay  the  ordinary  charges 
of  the  government.  Besides  this, 
the  State's  proportion  of  the  fed- 
eral debt  was  to  be  provided  for. 
It  vras  in  this  state  of  things  that 
two  remarkable  popular  meetings 
were  held  in  Boston,  in  the  spring 
of  1785,  to  act  upon  the  subject  of 
trade  and  navigation,  and  to  call  the 
attention  of  Congress  to  the  neces- 
sity for  a  national  regulation  of  com- 
merce. The  first  was  a  meeting  of 
the  merchants  and  tradesmen,  con- 
vened at  Faneuil  Hall  on  the  18th  of 
April.  They  appointed  a  commit- 
tee to  draft  a  petition  to  Congress, 
representing  the  embarrassments 
under  which  the  trade  was  labor- 
ing, and  took  measures  to  cause 
the  legislature  to  call  the  attention 
of  the  delegation  in  Congress  to 
the  importance  of  immediate  ac- 
tion upon  the  subject.  They  also 
established  a  committee  of  corre- 


spondence with  the  merchants  in  the 
other  seaports  of  the  United  States, 
to  induce  a  similar  action ;  and 
they  entered  into  a  pledge  not  to 
purchase  any  goods  of  the  British 
merchants  and  factors  residing  in 
Boston,  who  had  made  very  heavy 
importations,  which  tended  to  drain 
the  specie  of  the  State.  The  other 
meeting  was  an  assembly  of  the 
artisans  and  mechanics,  held  at  the 
Green  Dragon  Tavern,  on  the  28th 
of  April,  at  which  similar  resolu- 
tions were  adopted.  It  is  quite 
apparent,  from  these  proceedings, 
that  all  branches  of  industry  were 
threatened  with  ruin  ;  and  in  the 
efTorts  to  counteract  the  effects  of 
the  great  influx  of  foreign  com- 
modities, we  trace  the  first  move- 
ments of  a  popular  nature  to- 
wards a  national  control  over  com- 
merce. 

1  Governor  Bowdoin's  first  Mes- 
sage to  the  Legislature,  May  31 
1785. 


Ch.  VI.]  THE   CONEEDERATION,  337 

the  Federal  Union,  in  order  to  secure  and  perpetu- 
ate its  primary  objects.  Congress  was  requested  by 
these  resolves  to  recommend  such  a  convention.  A 
letter,  urgmg  the  importance  of  the  subject,  was 
addressed  by  the  Governor  of  Massachusetts  to  the 
President  of  Congress,  and  another  to  the  executive 
of  each  of  the  other  States.  The  resolves  were  also 
inclosed  to  the  delegates  of  the  State  m  Congress, 
with  mstructions  to  lay  them  before  that  body  at  the 
earliest  opportimity,  and  to  make  every  exertion  to 
carry  ithem  into  effect.^ 

They  were,  however,  never  presented  to  Congress. 
That  body  was  Avholly  unprepared  for  such  a  step, 
and  the  delegation  of  INIassachusetts  were  entirely  op- 
posed to  it,  as  premature.  It  had  been  all  along  the 
policy  of  Congress  to  obtain  only  a  grant  of  tempora- 
ry power  over  commerce,  and  to  this  pohcy  they  were 
committed  by  their  proposition,  now  pending  with  the 
legislatures  of  the  States,  and  by  the  instructions  of 
the  commissioners -whom  they  had  sent  to  Europe  to 
negotiate  commercial  treaties.  The  prevalent  idea  in 
Congress  was,  that  at  the  expiration  of  fifteen  years, 
—  the  period  for  which  they  had  asked  the  States  to 
grant  them  power  over  commerce,  —  a  new  commer- 
cial epoch  would  commence,  when  the  States  would 
have  a  more  clear  and  comprehensive  \dew  of  their 
interests,  and  of  the  best  means  for  promoting  them, 
whether  by  treaties  abroad,  or  by  the  delegation  and 
exercise  of  greater  power  at  home.     It  was  argued, 


1  July  1,1785. 
43 


338  THE  FEDERAL   CONSTITUTION.  [Book  IH. 

also,  that  the  most  safe  and  practicable  course  was, 
to  grant  temporary  power  in  the  first  instance,  and 
to  leave  the  question  of  its  permanent  adoption  as 
a  part  of  the  Confederation  to  depend  on  its  bene- 
ficial efiects.  Another  objection,  which  afterwards 
caused  serious  difficulty,  was,  that  the  Articles  of 
Confederation  contained  no  provision  for  their  amend- 
ment by  a  convention,  but  that  changes  should  origi- 
nate in  Congress  and  be  confirmed  by  the  State  legis- 
latures, and  that,  if  the  report  of  a  convention  should 
not  be  adopted  by  Congress,  great  mischiefs  \vould 
follow. 

But  a  deep-seated  jealousy  in  Congress  of  the  radi- 
cal changes  likely  to  be  made  in  the  system  of  gov- 
ernment lay  at  the  foundation  of  these  objections. 
There  was  an  apprehension  that  the  Convention 
might  be  composed  of  persons  favorable  to  an  aris- 
tocratic system ;  or  that,  even  if  the  members  were 
altogether  republican  in  their  views,  there  would  be 
great  danger  of  a  report  which  would  propose  an 
entire  remodelling  of  the  government.  The  delega- 
tion from  Massachusetts,  influenced  by  these  fears, 
retained  the  resolutions  of  the  State  for  two  months, 
and  then  replied  to  the  Governor's  letter,  assigning 
these  as  their  reasons  for  not  complying  with  the 
directions  given  to  them.^      The  legislature  of  Mas 

1  The  delegation   at  that  time  ing   and   altering    the   Confedera 

consisted  of  Elbridge  Gerry,  Sam-  tion  "    may  be  found  in  the  Life 

uel    Holten,    and     Rufus    King.  of  Hamilton,    IL    353.     See  also 

Their  "  Reasons  assigned  for  sus-  Boston    Magazine     for    1785,    p. 

pending  the  delivery  to  Congress  475. 
of  the  Governor's  letter  for  revis- 


Ch.  VI.] 


TPIE   CONFEDERATION. 


339 


sachusetts  thereupon  annulled  their  resolutions  rec- 
ommendmg  a  Convention.-^ 

Ic  is  manifest  from  this  occurrence,  that  Congress 
in  1785  were  no  more  in  a  condition  to  take  the  lead 
and  conduct  the  country  to  a  revision  of  the  Fed- 
eral Constitution,  than  they  were  in  1783,  when 
Hamilton  wished  to  have  a  declaration  made  of  its 
defects,  and  found  it  impracticable.  There  were  sel- 
dom present  more  than  *  five-and-twenty  members  ; 
and,  at  the  time' when  Massachusetts  proposed  to  call 
upon  them  to  act  upon  this  momentous  subject,  the 
whole  assembly  embraced  as  little  eminent  talent  as 
had  ever  appeared  m  it.  They  were  not  well  placed 
to  observe  that  something  more  than  "  the  declama- 
tion of  designing  men  "  was  at  work,  loosening  the 
foundations  of  the  system  which  they  were  admin- 
istering.^ They  saw  some  of  its  present  inconven- 
iences ;  but  they  did  not  see  how  rapidly  it  w^as  los- 


1  November  25,  1785. 

~  Letter  of  Messrs.  Gerry,  Hol- 
ten,  and  King,  delegates  in  Con- 
gress, to  the  Governor  of  Massa- 
chusetts, assigning  reasons  for  sus- 
pending the  delivery  of  his  letter 
to  Congress,  dated  September  3, 
1785.  Life  of  Hamilton,  IL  353, 
357.  "  We  are  apprehensive," 
said  they,  "  and  it  is  our  duty  to 
declare  it,  that  such  a  measure 
would  produce  throughout  the 
Union  an  exertion  of  the  friends 
of  an  aristocracy  to  send  members 
who  would  promote  a  change  of 
government ;  and  we  can  form 
some  judgment  of  the  plan  which 
such    members    would    report    to 


Congress.  But  should  the  mem- 
bers be  altogether  republican,  such 
have  been  the  declamations  of  de- 
signing men  against  the  Confeder- 
ation generally,  against  the  rota- 
tion of  members,  which,  perhaps, 
is  the  best  check  to  corruption,  and 
against  the  mode  of  altering  the 
Confederation  by  the  unanimous 
consent  of  the  legislatures,  which 
effectually  prevents  innovations  in 
the  articles  by  intrigue  or  surprise, 
that  we  think  there  is  great  dan- 
ger of  a  report  which  would  invest 
Congress  with  powers  that  the 
honorable  legislature  have  not  the 
most  distant  intention  to  dele 
gate." 


340  TPIE  FEDERAL   CONSTITUTION.  IBooK  HI. 

ing  the  confidence  of  the  country,  of  which  the  fol- 
lowmg  year  was  destined  to  deprive  it  altogether. 

Before  the  year  1785  had  closed,  however,  Vir- 
ginia was  preparing  to  give  the  weight  of  her  influ- 
ence to  the  advancing  cause  of  reform. 

A  proposition  was  introduced  into  the  House  of 
Delegates  of  Virginia,  to  instruct  the  delegates  of  the 
State  in  Congress  to  move  a  recommendation  to  all 
the  States  to  authorize  Congress  to  collect  a  revenue 
by  means  of  duties  uniform  throughout  the  United 
States,  for  a  period  of  thirteen  years.^  The  absolute 
necessity  for  such  a  system  was  generally  admitted ; 
but,  as  in  Massachusetts,  the  opinions  of  the  members 
were  divided  between  a  permanent  grant  of  power 
and  a  grant  for  a  limited  term.  The  advocates  of  the 
limitation,  arguing  that  the  utility  of  the  measure 
ought  to  be  tested  by  experiment,  contended,  that  a 
temporary  grant  of  commercial  powers  might  be  and 
would  be  renewed  from  time  to  time,  if  experience 
should  prove  its  efficacy.  They  forgot  that  the  other 
powers  granted  to  the  Union,  on  which  its  whole  fabric 
rested,  were  perpetual  and  irrevocable ;  and  that  the 
first  sacrifices  of  sovereignty  made  by  the  States  had 
been  the  result  of  circumstances  which  imperatively 
demanded  the  surrender,  just  as  the  situation  of  the 
country  now  demanded  a  similar  surrender  of  an 
irrevocable  power  over  commerce.  The  proposal  to 
make  this  grant  temporary  only,  was  a  proposal  to 
engraft  an  anomaly  upon  the  other  powers  of  the 

1  November  SOth,  1785. 


Ch.  VI.l  THE   COKFEDEKATION.  341 

Confederacy,  with  very  little  xDiospect  of  its  future 
renewal ;  for  the  caprice,  the  jealousy,  and  the  diver- 
sity of  interests  of  the  different  States,  were  obstacles 
which  the  scheme  of  a  temporary  grant  could  only 
evade  for  the  present,  leaving  them  still  in  existence 
w^hen  the  period  of  the  grant  should  expire.  But 
the  arguments  in  favor  of  this  scheme  prevailed, 
and  the  friends  of  the  more  enlarged  and  liberal  sys- 
tem, believing  that  a  temporary  measure  would  stand 
afterwards  in  the  way  of  a  permanent  one,  and  would 
confirm  the  policy  of  other  countries  foimded  on  the 
jealousies  of  the  States,  were  glad  to  allow  the  sub- 
ject to  subside,  until  a  new  event  opened  the  pros- 
pect for  a  more  efficient  plan.-^ 

The  citizens  of  Virginia  and  Maryland,  directly  in 
terested  in  the  navigation  of  the  rivers  Potomac  and 
Pocomoke,  and  of  the  Bay  of  Chesapeake,  had  long 
been  embarrassed  by  the  conflicting  rights  and  regu- 
lations of  their  respective  States ;  and,  in  the  sprmg 
of  1785,  an  effort  at  accommodation  was  made,  by  the 
appointment  of  commissioners  on  the  part  of  each 
State  to  form  a  compact  between  them  for  the  regu- 
lation of  the  trade  upon  those  waters.  These  com- 
missioners assembled  at  Alexandiia  in  March,  and 
while  there  made  a  ^dsit  at  Mount  Vernon,  where  a 
further  scheme  was  concerted  for  the  establishment  of 
harmonious  commercial  regulations  between  the  two 

1  The  resolution  introduced  on  table.      Elliot's   Debates,   I.   114, 

the  30th  of  November  was  agreed  115.      Letter   of  Mr.  Madison   to 

to  in  the  Delegates,  but  before  it  General  Washington,  of  December 

was  carried  up  to  the  Senate,  it  9,     1785,    Washington's    Works, 

"was  reconsidered  and  laid  upon  the  IX.  508. 


342 


THE  FEDERAL   CONSTITUTION. 


[Book  III. 


States.-^  This  plan  contemplated  the  appointment  of 
other  commissioners,  having  power  to  make  arrange- 
ments, with  the  assent  of  Congress,  for  maintainmg 
a  naval  force  in  the  Chesapeake,  and  also  for  establish- 
ing a  tariif  of  duties  on  imports,  to  be  enacted  by  the 
legislatui-es  of  both  the  States.  A  report,  embracing 
this  recommendation,  was  accordingly  made  by  the 
Alexandria  commissioners  to  their  respective  govern- 
ments. In  the  legislature  of  Virginia  this  report, 
was  received  while  the  proposition  for  granting  tem- 
porary commercial  powers  to  Congress  was  under 
consideration ;  and  it  was  immediately  followed  by  a 
resolution  directing  that  part  of  the  plan  which  re- 
spected duties  on  imports  to  be  communicated  to 
all  the  States,  vrith  an  invitation  to  send  deputies  to 
the  meeting.      In  a  few  days  afterwards,  the  cele- 


1  What  direct  agency  General 
Washington  had  in  suggesting  or 
promoting  this  scheme,  does  not 
appear  ;  although  it  seems  to  have 
originated,  or  to  have  been  agreed 
upon,  at  his  house.  His  published 
correspondence  contains  no  mention 
of  the  visit  of  the  commissioners ; 
but  Chief  Justice  Marshall  states 
that  such  a  visit  was  made,  and  in 
this  statement  he  is  followed  by 
Mr.  Sparks.  (Marshall,  V.  90; 
Sparks,  I.  428.)  Mr.  Madison, 
writing  to  General  Washington 
in  December,  1785,  refers  to  "the 
proposed  appointment  of  commis- 
sioners for  Virginia  and  Maryland, 
concerted  at  Mount  Vernon,  for  keep- 
ing up  harmony  in  the  commer- 
cial regulations  of  the  two  States," 


and  says  that  the  meeting  of  com- 
missioners from  all  the  States, 
which  had  then  been  proposed, 
"seems  naturally  to  grow  out  of 
it."  (Washington's  Writings,  IX. 
509.) 

That  Washington  foresaw  that 
the  plan  agreed  upon  at  his  house 
in  March  would  lead  to  a  general 
assembly  of  representatives  of  all 
the  States,  seems  altogether  prob- 
able, from  the  opinions  which  he 
entertained  and  expressed  to  his 
correspondents,  during  that  sum- 
mer, upon  the  subject  of  conferring 
adequate  commercial  powers  upon 
Congress.  (See  his  Letters  to 
Mr.  McHenry  and  Mr.  Madison 
of  August  22d  and  November  30th, 
Writings,  IX.  121,  145.)  « 


Ch.  vi.j  the  confederation.  343 

brated  resolution  of  Virginia,  which  led  the  way  to 
the  Convention  at  Annapolis,  was  adopted  by  the 
legislature,  directing  the  appomtment  of  commission- 
ers to  meet  with  the  deputies  of  all  the  other  States 
who  might  be  appointed  for  the  same  purpose,  to 
consider  the  whole  subject  of  the  commerce  of  the 
United  States.-^  The  cii'cular  letter  which  transmit 
ted  this  resolution  to  the  several  States  proposed  that 
Annapolis  in  the  State  of  Maryland  should  be  the 
place,  and  that  the  following  September  should  be 
the  time  of  meeting. 

The  fate  of  this  measure  now  turned  principally 
upon  the  action  of  the  State  of  New  York.  The 
power  of  levying  a  national  impost,  proposed  in  the 
revenue  system  of  1783,  had  been  steadily  withheld 
from  Congress  by  the  legislatui-e  of  that  State.  Ever 
since  the  peace,  the  State  had  been  divided  between 
two  parties,  the  friends  of  adequate  powers  in  Con- 


1  This  resolution,  passed  Janu-  far  a  uniform  system  in  their  com 

ary  21,  1786,  was  in  these  words  :  mercial  regulations  may  be  neces- 

"  Resolved,    That    Edmund    Ran-  sary  to  their  common  interest  and 

dolph,  James  Madison,  Jr.,  Wal-  their  permanent  harmony;  and  to 

ter    Jones,    St.    George    Tucker,  report  to  the  several    States  such 

Meriweather  Smith,  David   Ross,  an  act  relative  to  this  great  object, 

William  Ronald,  and  George  Ma-  as,   when  unanimously  ratified  by 

son,  E&quires,  be  appointed  com-  them,  will  enable  the  United  States 

missioners,   who,  or   any    five   of  in  Congress   assembled  effectually 

whom,   simll   meet   such  commis-  to  provide  for  the  same ;  that  the 

sioners  as  may  be  appointed  by  the  said  commissioners  shall    immedi- 

other   States   in   the   Union,  at  a  ately  transmit  to  the  several  States 

time  and  place  to  be  agreed  on,  to  copies  of  the  preceding  resolution, 

take  into  consideration   the   trade  with   a   circulix   letter   respecting 

of  the  United  States;  to  examine  their  concurrence  therein,  and  pro- 

the  relative  situation  and  trade  of  posing  a  time   and   place   for   the 

the  said  States;  to  consider  how  meeting  aforesaid." 


344  THE  FEDERAL  CONSTITUTION.  [Book  III. 

gress,  and  the  adherents  of  State  sovereignty;  and 
the  belief  that  the  commercial  advantage  of  the  State 
depended  upon  retaining  the  power  to  collect  their 
own  revenues,  had  all  along  given  to  the  latter  an 
ascendency  in  the  legislature.  In  1784,  they  estab- 
lished a  custom-house  and  a  revenue  system  of  their 
own.  In  1785,  a  proposition  to  grant  the  required 
powers  to  Congress  was  lost  in 'the  Senate;  and  in 
1786,  it  became  necessary  for  Congress  to  bring  this 
question  to  a  final  issue.  Three  other  States,  as  we 
have  seen,  stood  in  the  same  category  with  New 
York,  having  decided  in  favor  of  no  part  of  the  plan 
which  Congress  had  so  long  and  so  repeatedly  urged 
upon  their  adoption.-^  Declaring,  therefore,  that  the 
crisis  had  arrived  when  the  people  of  the  United 
States,  by  whose  will  and  for  whose  benefit  the  fed- 
eral government  was  instituted,  must  decide  whether 
they  would  support  their  work  as  a  nation,  by  main- 
taining the  public  faith  at  home  and  abroad,  or 
whether,  for  want  of  a  timely  exertion  in  establish- 
ing a  general  revenue  system,  and  thereby  giving 
strength  to  the  Confederacy,  they  would  hazard  the 
existence  of  the  Union  and  the  privileges  for  wliich 
they  had  contended,  —  Congress  left  the  responsi- 
bility of  the  decision  with  the  legislatures  of  the 
States.^ 

1  Rhode  Island,  Maryland,  and  cover,  if  possible,  the  reasons  which 
Georgia.  have  prevented  its  adoption  ;  they 

2  "The  committee,"  said  the  cannot  learn  that  any  member  of 
Report,  "have  thought  it  their  the  Confederacy  has  stated  or 
duty  candidly  to  examine  the  prin-  brought  forward  any  objections 
ciples  of  this  system,  and  to  dis-  against  it,  and  the  result  of  theit 


Ch.  VI.] 


THE   CONFEDERATION. 


345 


It  was  now  that  the  influence  of  Hamilton  upon 
the  destinies  of  this  country  began  to  be  favored  by 
the  events  which  had  brought  its  afikirs  to  the  pres- 
ent juncture.  To  his  sagacious  and  watchful  fore- 
cast, the  proposal  of  a  commercial  convention,  ema- 
nating from  Virginia,  presented  the  opportunity  which 
he  had  long  desired,  to  effect  an  entire  change  in  the 
system  of  the  federal  government;  while,  at  the  same 
time,  the  final  appeal  made  by  Congress  for  the  estab- 
lishment of  the  revenue  system  gave  him  an  occasion 
to  brmg  the  State  of  New  York  into  the  moAement 
which  had  been  originated  by  Virginia.  He  deter- 
mined that  this  system  shoidd  be  again  presented  to 
the  legislature,  for  distmct  approval  or  rejection,  and 
that,  if  it  should  be  rejected,  the  State  should  still 


impartial  inquiries  into  the  nature 
and  operation  of  the  plan  has  been 
a  clear  and  decided  opinion,  that 
the  system  itself  is  more  free  from 
well-founded  exceptions,  and  is 
better  calculated  to  receive  the  ap- 
probation of  the  several  States, 
than  any  other  that  the  wisdom 
of  Congress  can  devise.  In  the 
course  of  this  inquiry,  it  most 
clearly  appeared  that  the  requisi- 
tions of  Congress  for  eight  years 
past  have  been  so  irregular  in  their 
operation,  so  uncertain  in  their  col- 
lection, and  so  evidently  unproduc- 
tive, that  a  reliance  on  them  in  fu- 
ture, as  a  source  from  whence 
moneys  are  to  be  drawn  to  dis- 
charge the  engagements  of  the 
Confederacy,  definite  as  they  are 
in  time  and  amount,  would  be  not 
VOL.  I.  44 


less  dishonorable  to  the  under- 
standings of  those  who  entertain 
such  confidence,  than  it  would 
be  dangerous  to  the  welfare  and 
peace  of  the  Union.  The  com- 
mittee are  therefore  seriously  im- 
pressed with  the  indispensable  ob- 
ligation that  Congress  are  under 
of  representing  to  the  immediate 
and  impartial  consideration  of  the 
several  States,  the  utter  impossi- 
bility of  maintaining  and  preserv- 
ing the  faith  of  the  federal  govern- 
ment by  temporary  requisitions  on 
the  States,  and  the  consequent  ne- 
cessity of  an  early  and  complete 
accession  of  all  the  States  to  the 
revenue  system  of  the  18th  of 
April,  1783."  (Journals  of  Con- 
gress, XI.  35,  36  February  15, 
1786.) 


846  THE  FEDERAL  CONSTITUTION.  LBook  HI. 

send  a  representation  to  the  Convention  at  Annapolis. 
He  therefore  caused  the  revenue  system,  as  proposed 
by  Congress,  to  be  again  brought  before  the  legisla- 
ture, where  it  was  again  rejected;  and  he  and  his 
friends  then  threw  their  whole  influence  in  favor  of 
the  appointment  of  commissioners  to  attend  the  com- 
mercial convention,  and  succeeded,  —  Hamilton  him- 
self being  appointed  one  of  them.-^ 

This  great  step  having  been  taken,  the  course  of 
the  State  of  New  York  upon  the  revenue  system  of 
1783,  which  brought  her  at  length  to  an  open  con- 
troversy with  Congress,  tended  strongly  to  aid  the 
plans  of  -Hamilton,  and  finally  gave  him  the  ascen- 
dency in  the  State  itself  The  legislature,  in  May, 
1786,  passed  an  act  for  granting  imposts  and  duties 
to  the  United  States,  and  soon  afterwards  adjourned. 
It  was  immediately  pronounced  by  Congress  not  to 
be  a  compliance  with  their  recommendation,  and  the 
Governor  was  earnestly  requested  to  reassemble  the 
legislature.  This  he  declined  to  do,  upon  the  ground 
of  a  want  of  constitutional  power.  Congress  again 
urged  the  summoning  of  the  legislature,  for  the  pur- 
pose of  granting  the  system  of  impost  in  such  a  man- 
ner as  to  enable  them  to  carry  it  into  effect,  and  the 
Governor  again  refused.^ 


1  Life  of  Hamilton,  II.  374,  375.  removable  by  Congress,  they  made 

2  The  legislature  of  New  York  them  removable  by  the  State,  on 
were  willing  to  grant  the  duties  to  conviction  for  default  or  neglect  of 
Congress,  but  insisted  upon  reserv-  duty  in  the  State  courts.  This 
ing  the  power  of  levying  and  col-  was  a  material  departure  from  the 
lecting  them  ;  and,  instead  of  mak-  plan  recommended  by  Congress, 
ing  the  collectors  amenable  to  and  and  was  entirely  inconsistent  with 


Ch.  VI.]  THE   CONTEDERATION.  347 

Arrived  at  Annapolis,  Hamilton  found  there  the 
representatives  of  five  States  only.^  He  had  come 
with  the  determmation  that  the  Convention  should 
lay  before  the  comitry  the  whole  subject  of  the  con- 
dition of  the  States  and  the  want  of  an  efficient  fedr- 
eral  government.  But  the  avowed  purpose  of  the 
meetmg  was  solely  to  consider  the  means  of  estab- 
lishmg  a  uniform  system  of  commercial  regulations, 
and  not  to  reform  the  existing  government  of  the 
Union.  New  Jersey  alone,  of  the  five  States  repre- 
sented, had  empowered  her  commissioners  to  con- 
sider of  "  other  important  matters,"  m  addition  to 
the  subject  of  commercial  regulations.  Four  other 
States  had  appointed  commissioners,  none  of  wdiom 
had  attended;  and  the  four  remaining  States  had 
made  no  appointments  at  all.^ 

Under  these  cii'cumstances,  it  was  certainly  a  mat- 

the   grants  already  made  by  sev-  January    14,    1787,    says :    "  You 

eral  of  the  States.     See  the  Report  ask   what   prevented   the    Eastern 

and    proceedings   in   Congress   on  States  from  attending  the  Septem- 

tlie  New  York  Act,  July  27 -Au-  ber  meeting  at   Annapolis.     It  is 

gust  23,  1786.     Journals,  XL  153,  difficult  to  give  a  precise  answer 

184,  197,  200.  to  this  question.     Perhaps  torpid- 

1  New  York  was  represented  by  ity  in  New  Hampshire  ;  faction 
Alexander  Hamilton  and  Egbert  and  heats  about  their  paper  money 
Benson  ;  New  Jersey  by  Abraham  in  Rhode  Island  ;  and  jealousy  in 
Clark,  William  C.  Houston,  and  Connecticut.  Massachusetts  had 
James  Schureman ;  Pennsylvania  chosen  delegates  to  attend,  who 
by  Tench  Coxe  ;  Delaware  by  did  not  decline  until  very  late,  and 
George  Read,  John  Dickinson,  and  the  finding  of  other  persons  to  sup- 
Richard  Bassett ;  A^irginia  by  Ed-  ply  their  places  was  attended  with 
mund  Randolph  (Governor),  James  delay,  so  that  the  convention  had 
Madison,  Jr.,  and  St.  George  broken  up  by  the  time  the  new- 
Tucker,  chosen  delegates  had  reached  Phil- 

2  General  Knox,  writing  to  Gen-  adelphia."  Writings  of  W^ishing- 
envJ    Washington    under    date   of  ton,  IX.  513. 


•348  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

ter  of  great  delicacy  for  the  commissioners  of  five 
States  only  to  pass  upon  the  general  situation  of  the 
Union,  and  to  pronounce  its  existing  government  de- 
fective and  insufficient.  Hamilton,  however,  felt  that 
this  opportunity,  once  lost,  might  never  occur  again ; 
and  although  willing  to  waive  his  original  purpose 
of  a  full  exposition  of  the  defects  of  the  Confedera- 
tion, he  did  not  deem  it  expedient  that  the  Conven- 
tion should  adjourn  without  proposing  to  the  coun- 
try some  measure  that  would  lead  to  the  necessary 
reforms.  He  modified  his  original  plan,  therefore, 
and  laid  before  his  colleagues  a  report,  which  for- 
mally proposed  to  the  several  States  the  assembling 
of  a  general  convention,  to  take  into  consideration 
the  situation  of  the  United  States. 

In  this  document,  it  was  declared  that  the  regu- 
lation of  trade,  which  had  been  made  the  object 
of  the  meeting  at  Annapolis,  could  not  be  effected 
alone,  for  the  power  of  regulating  commerce  would 
enter  so  far  into  the  general  system  of  the  federal 
government,  that  it  would  require  a  corresponding 
adjustment  of  the  other  parts  of  the  system.  That 
the  system  of  the  general  government  was  seriously 
defective ;  that  those  defects  were  likely  to  be  fomid 
greater  on  a  close  inspection ;  that  they  were  the 
cause  of  the  embarrassments  which  marked  the  state 
of  public  affairs,  foreign  and  domestic;  and  that 
some  mode  by  which  they  could  be  peaceably  sup- 
plied was  imperatively  demanded  by  the  public  ne- 
cessities, —  were  propositions  which  the  country  was 
then  prepared  to  receive.     A  convention  of  deputies 


Ch.  vi.j  the  cokfedeeation.  3-49 

from  the  different  States,  for  the  special  and  sole  pur- 
pose of  investigating  the  defects  of  the  national  gov- 
ernment, seemed  to  be  the  course  entitled  to  prefer- 
ence over  all  others.-^ 

It  was  indeed  the  only  method  by  which  the  ob- 
ject of  the  great  statesman  who  drafted  this  report 
could  have  been  reached.  The  Articles  of  Confeder- 
ation had  provided,  that  they  should  be  m\T.olably 
observed  by  every  State ;  that  the  Union  should  be 
perpetual ;  and  that  no  alteration  should  be  made  in 
any  of  the  Articles,  unless  agreed  to  in  a  Congress 
of  the  United  States,  and  confirmed  by  the  legisla- 
tiu'e  of  every  State.^  To  have  left  the  whole  subject 
to  the  action  of  Congress  would  have  insured,  at  most, 
only  a  change  in  some  of  the  features  of  the  existing 
government,  instead  of  the  great  reform  which  Ham- 
ilton believed  to  be  essential,  —  the  substitution  of  a 
totally  different  system.  At  the  same  time,  the  co- 
operation and  assent  of  Congress  were  necessary  to 
the  success  of  the  plan  of  a  convention,  in  order  that 
it  might  not  seem  to  be  a  violent  departure  from  the 
provisions  of  the  Articles  of  Confederation,  and  also 
for  the  sake  of  their  influence  with  the  States.  The 
proposal  of  the  report  was  therefore  cautious.  It 
did  not  suggest  the  summonmg  of  a  convention  to 
frame  a  new  constitution  of  government,  but  "  to  de- 
vise such  further  provisions  as  might  appear  to  be 
necessary  to  render  the  constitution  of  the  federal 

^  Report  of  the   Annapolis   Convention,    Elliot's   Debates,   I.    116; 
Hamilton's  Works,  II.  336. 
2  Article  XIII. 


350  THE  FEDERAL  CONSTITUTION.  [Book  m. 

government  adequate  to  the  exigencies  of  the  Union." 
It  proposed  also,  that  whatever  reform  should  be 
agreed  on  by  the  convention  should  be  reported  to 
Congress,  and,  when  agreed  to  by  them,  should  be 
confirmed  by  the  legislatures  of  all  the  States.  In 
this  manner,  the  proposal  avoided  any  seeming  vio- 
lence to  the  Articles  of  Confederation,  and  suggested 
the  convention  as  a  body  to  prepare  for  the  use  of 
Congress  a  plan  to  be  adopted  by  them  for  submis- 
sion to  the  States.^ 

At  the  same  time,  Hamilton  undoubtedly  contem- 
plated more  than  any  amendment  of  the  existing 
constitution.  In  1780,  he  had  analyzed  the  defects 
of  the  general  government,  sketched  the  outline  of  a 
Federal  Constitution,  and-  suggested  the  calling  of  a 
convention  to  frame  such  a  system.^  The  idea  of 
such  a  convention  was  undoubtedly  entertained,  by 
many  persons,  before  the  meeting  at  Annapolis.  It 
had  been  recommended  by  the  legislature  of  New 
York  in  1782,  and  by  that  of  Massachusetts  in  1785. 
But  Hamilton  had  foreseen  its  necessity  in  1780, 
more  than  seven  years  before  the  meeting  at  Annapo- 
lis ;  and,  although  he  may  not  have  been  the  author 
of  the  first  public  proposal  of  such  a  measure,  his 
private  correspondence  contains  the  first  suggestion 
of  it,  and  proves  that  he  had  conceived  the  main  fea- 
tures of  the  Constitution  of  the  United  States,  even 
before  the  Confederation  itself  was  established.^ 


1  Report,  lit  supra.  3  ibid.      The    first    public   pro 

2  See  his  letter  to  James  Duanc,       posal  of  a  continental  convention  is 
writter  in  1780,  Life,  I.  281-305.       assigned   by  Mr.   Madison  to  one 


Cii.  VI.J 


THE  CONFEDERATION. 


351 


The  recommendation  of  the  Annapolis  commis- 
sioners was  variously  received.  In  the  legislature 
of  Virginia  it  met  with  a  cordial  approval,  and  an 
act  was  passed  during  the  autumn  to  provide  for  the 


Pelatiah  Webster,  whom  he  calls 
"  an  able,  though  not  conspicuous 
citizen,"  and  who  made  this  sug- 
gestion in  a  pamphlet  published 
in  May,  1781.  Recent  researches 
have  not  added  to  our  knowledge 
of  this  writer.  In  the  summer  of 
1782,  the  legislature  of  New  York, 
under  the  suggestion  of  Hamilton, 
passed  resolutions  recommending 
such  a  convention.  On  the  1st 
of  April,  1783,  Hamilton,  in  a  ''e- 
bate  in  Congress,  expressed  his 
desire  to  see  a  general  convention 
take  place.  In  1784,  the  measure 
was  a  good  deal  talked  of  among 
the  members  of  Congress,  and  in 
the  winter  of  1784  -  85,  Noah  Web- 
ster, an  eminent  political  writer 
in  Connecticut,  suggested  "  a  new 
system  of  government,  which  should 
act,  not  on  the  States,  but  directly 
on  individuals,  and  vest  in  Con- 
gress full  power  to  carry  its  laws 
into  effect."  In  1786,  the  subject 
was  again  talked  of  among  mem- 
bers of  Congress,  before  the  meet- 
ing at  Annapolis.  (Madison.  El- 
liot, V.  117,  118.)  But  Hamil- 
ton's letter  to  James  Duane,  in 
1780,  although  not  published  at 
the  time,  was  of  course  earlier  than 
any  of  these  suggestions.  In  that 
letter,  after  showing  that  the  fun- 
damental defect  of  the  then  exist- 
ing system  was  a  want  of  power 
in  Congress    he  thus  analyzes  in 


advance  the  Articles  of  Confedera- 
tion, which  had  not  then  taken 
effect :  —  "  But  the  Confederation 
itself  is  defective,  and  requires  to 
be  altered.  It  is  neither  fit  for 
war  nor  peace.  The  idea  of  an 
uncontrollable  sovereignty,  in  each 
State,  over  its  internal  police,  will 
defeat  the  other  powers  given  to 
Congress,  and  make  our  Union 
feeble  and  precarious.  There  are 
instances,  without  number,  where 
acts  necessary  for  the  general  good, 
and  which  rise  out  of  the  powers 
given  to  Congress,  must  interfere 
with  the  internal  police  of  the 
States ;  and  there  are  as  many 
instances  in  which  the  particular 
States,  by  arrangements  of  internal 
police,  can  effectually,  though  in- 
directly, counteract  the  arrange- 
ments of  Congress.  You  have  al- 
ready had  examples  of  this,  for 
which  I  refer  to  your  own  memory. 
The  Confederation  gives  the  States, 
individually,  too  much  influence  in 
the  affairs  of  the  army  ;  they  should 
have  nothing  to  do  with  it.  The 
entire  foundation  and  disposal  of 
our  military  forces  ought  to  belong 
to  Congress.  It  is  an  essential  el- 
ement of  the  Union ;  and  it  ought 
to  be  the  policy  of  Congress  to  de- 
stroy all  ideas  of  State  attachment 
in  the  army,  and  make  it  look  up 
wholly  to  them.  For  this  purpose, 
all  appointmnnts,   promotions,  and 


352 


THE  FEDERAL   CONSTITUTION, 


[Book  III. 


appointment  of  delegates  to  the  proposed  conven- 
tion. In  Congress,  it  was  received  at  first  with  little 
favor.  Doubts  were  entertained  there  whether  any 
changes  in  the  federal  government  could  be  constitu- 


provisions  whatsoever  ought  to  be 
made  by  them.  It  may  be  appre- 
hended, that  this  may  be  dangerous 
to  liberty.  But  nothing  appears 
more  evident  to  me,  than  that  we 
run  much  greater  risk  of  having  a 
vA'eak  and  disunited  federal  govern- 
ment, than  one  which  will  be  able 
to  usurp  upon  the  rights  of  the 
people.  Already  some  of  the  lines 
of  the  army  would  obey  their  States 
in  opposition  to  Congress,  notwith- 
standing the  pains  we  have  taken 
to  preserve  the  unity  of  the  army. 
If  any  thing  would  hinder  this,  it 
would  be  the  personal  influence 
of  the  general,  —  a  melancholy 
and  mortifying  consideration.  The 
forms  of  our  State  constitutions 
must  always  give  them  great  weight 
in  our  affairs,  and  will  make  it  too 
difficult  to  blind  them  to  the  pur- 
suit of  a  common  interest,  too  easy 
to  oppose  what  they  do  not  like, 
and  to  form  partial  combinations, 
subversive  of  the  general  one. 
There  is  a  wide  difference  between 
our  situation  and  that  of  an  empire 
under  one  simple  form  of  govern- 
ment, distributed  into  counties,  prov- 
inces, or  districts,  which  have  no 
legislatures,  but  merely  magistrat- 
ical  bodies  to  execute  the  laws  of 
a  common  sovereign.  There  the 
danger  is  tliat  the  sovereign  will 
have  too  much  power,  and  oppress 
the  parts  of  which  it  is  composed. 


In  our  case,  that  of  an  empire  com- 
posed of  confederate  states,  each 
with  a  government  completely  or- 
ganized within  itself,  having  all  the 
means  to  draw  its  subjects  to  a  close 
dependence  on  itself,  the  danger 
is  directly  the  reverse.  It  is,  that 
the  common  sovereign  will  not  have 
power  sufficient  to  unite  the  differ- 
ent members  together,  and  direct  the 
common  forces  to  the  interest  and 

happiness  of  the  whole 

The  Confederation,  too,  gives  the 
power  of  the  purse  too  entirely  to 
the  State  legislatures.  It  should 
provide  perpetual  funds  in  the  dis- 
posal of  Congress,  by  a  land-tax, 
poll-tax,  or  the  like.  All  imposts 
upon  commerce  ought  to  be  laid  by 
Congress,  and  appropriated  to  their 
use  ;  for  without  certain  revenues, 
a  government  can  have  no  power  ; 
that  power  which  holds  the  purse- 
strings  absolutely,  must  rule.  This 
seems  to  be  a  medium  which,  with- 
out making  Congress  altogether  in- 
dependent, will  tend  to  give  reality 
to  its  authority.  Another  defect 
in  our  system  is,  want  of  method 
and  energy  in  the  administration. 
This  has  partly  resulted  from  the 
other  defect ;  but  in  a  great  degree 
from  prejudice  and  the  want  of  a 
proper  executive.  Congress  liave 
kept  the  power  too  much  in  their 
own  hands,  and  have  meddled  too 
much   with   details  of  every  sort. 


Ch.  VI.  I 


THE   CONFEDERATION. 


353 


tionally  made,  unless  they  were  to  originate  in  Con 
gress  and  were  then  to  be  adopted  by  the  legisla- 
tures of  the  States,  pursuant  to  the  mode  provided 
by  the  Articles  of  Confederation.    The  legislatures,  it 


Congress  is  properly  a  delibera- 
tive corps,  and  it  forgets  itself 
when  it  attempts  to  play  the  exec- 
utive. It  is  impossible  that  a 
body,  numerous  as  it  is,  constantly 
fluctuating,  can  ever  act  vi'ith  suffi- 
cient decision,  or  with  system. 
Two  thirds  of  the  members,  one 
half  the  time,  cannot  know  what 
has  gone  before  them,  or  what  con- 
nection the  subject  in  hand  has  to 
what  has  been  transacted  on  former 
occasions.  The  members  who  have 
been  more  permanent  will  only  give 
information  that  promotes  the  side 
hey  espouse,  in  the  present  case, 
and  will  as  often  mislead  as  en- 
lighten. The  variety  of  business 
must  distract,  and  the  proneness 
of  every  assembly  to  debate  must 
at  all  times  delay.  Lastly,  Con- 
gress, convinced  of  these  incon- 
veniences, have  gone  into  the  meas- 
ure of  appointing  boards.  But  this 
is,  in  my  opinion,  a  bad  plan.  A 
single  man,  in  each  department  of 
the  administration,  would  be  great- 
ly preferable.  It  would  give  us  a 
chance  of  more  knowledge,  more 
activity,  more  responsibility,  and, 
of  course,  more  zeal  and  attention. 
Boards  partake  of  the  inconven- 
iences of  larger  assemblies ;  their 
decisions  are  slower,  their  energy 
less,  their  responsibility  more  dif- 
fused. They  will  not  have  the 
same  abilities  and  knowledge  as  an 
VOL.  I.  45 


administration  by  single  men .  Men 
of  the  first  pretensions  will  not  so 
readily  engage  in  them,  because 
they  will  be  less  conspicuous,  of 
less  importance,  have  less  oppor- 
tunity of  distinguishing  themselves. 
The  members  of  boards  will  take 
less  pains  to  inform  themselves 
and  arrive  at  eminence,  because 
they  have  fewer  motives  to  do  it. 
All  these  reasons  conspire  to  give 
a  preference  to  the  plan  of  vesting 
the  great  executive  departments 
of  the  state  in  the  hands  of  indi- 
viduals. As  these  men  will  be, 
of  course,  at  all  times  under  the 
direction  of  Congress,  we  shall 
blend  the  advantages  of  a  monar- 
chy in  one  constitution 

I  shall  now  propose  the  remedies 
which  appear  to  me  applicable  to 
our  circumstances,  and  necessary  to 
extricate  our  affairs  from  their  pres- 
ent deplorable  situation.  The  first 
step  must  be  to  give  Congress  powers 
competent  to  the  public  exigencies. 
This  may  happen  in  two  ways  : 
one,  by  resuming  and  exercising 
the  discretionary  powers  I  suppose 
to  have  been  originally  vested  in 
them  for  the  safety  of  the  States, 
and  resting  their  conduct  on  the 
candor  of  their  countrymen  and  the 
necessity  of  the  conjuncture  ;  the 
other,  hy  calling  immediately  a  con- 
vcntion  of  all  the  States,  with  full 
authority  to  conclude  finally  upon 


35' 


THE  FEDERAL  CONSTITUTION. 


[Book  III. 


was  argued,  could  not  adopt  any  scheme  that  might 
be  proposed  by  a  convention;  andif  it  were  submitted 
to  the  people,  it  was  not  only  doubtful  what  degree 
of  assent  on  their  part  would  make  it  valid,  but  it 


a  general  confederation,  stating  to 
them  beforehand  explicitly  the  evils 
arising  from  a  want  of  power  in 
Congress,  and  the  impossibility  of 
supporting  the  contest  on  its  pres- 
ent footing,  that  the  delegates  may 
come   possessed   of   proper  senti- 
ments, as  well  as  proper  authority, 
to   give  efficacy   to  the  meeting. 
Their  cormnission  should  include  a 
right  of  vesting  Congress  with  the 
whole  or  a  proportion  of  the  unoccu- 
pied lands,  to  be  employed  for  the 
purpose   of  raising  a  revenue,  re- 
serving the  jurisdiction  to  the  States 
by  whom  they  are  granted.     The 
Confederation,    in     my      opinion, 
should  give  Congress  a  complete 
sovereignty  ;  except  as  to  that  part 
of  internal  police  w^hich  relates  to 
the    rights    of   property   and    life 
among  individuals,  and  to  raising 
money  by  internal  taxes.     It  is  ne- 
cessary that  every  thing  belonging 
to   this    should    be    regulated    by 
the  State  legislatures.      Congress 
should  have  complete  sovereignty 
in-  all  that  relates  to  war,  peace, 
trade,  finance ;  and  to  the  manage- 
ment of  foreign  affairs ;  the  right 
of  declaring  war,  of  raising  armies, 
officering,  paying  them,  directing 
their  motions  in  every  respect ;  of 
equipping    fleets,   and    doing    the 
same  with  them  ;  of  building  fortifi- 
cations, arsenals,  magazines,  &c. ; 
of  making  peace  on  such  conditions 
as  they  think  proper ;  of  regulat- 


ing trade,  determining  with  what 
countries  it  shall  be  carried  on  ; 
granting  indulgences ;  laying  pro- 
hibitions on  all  the  articles  of  ex- 
port or  import;  imposing  duties, 
granting  bounties  and  premiums 
for  raising,  exporting,  or  import- 
ing ;  and  applying  to  their  own 
use  the  product  of  these  duties, 
only  giving  credit  to  the  States  on 
whom  they  are  raised  in  the  gen- 
eral account  of  revenues  and  ex- 
pense ;  instituting  admiralty  courts, 
&c. ;  of  coining  money,  establish- 
ing banks  on  such  terms,  and  with 
such  privileges,  as  they  think  prop- 
er ;  appropriating  funds,  and  doing 
whatever  else  relates  to  the  opera- 
tions of  finance  ;  transacting  every 
thing  with  foreign  nations ;  mak- 
ing alliances  offensive  and  defen- 
sive, and  treaties  of  commerce,  &c. 

The  second  step  I  would 

recommend  is,  that  Congress  should 
instantly  appoint  the  following  great 
officers  of  state :  a  Secretary  for 
Foreign  Affairs  ;  a  President  of 
War  ;  a  President  of  Marine  ;  a 
Financier ;  a  President  of  Trade. 
.....  These  officers  should  have 
nearly  the  same  powers  and  func- 
tions as  those  in  France  analogous 
to  them,  and  each  should  be  diief 
in  his  department,  with  subordi- 
nate boards,  composed  of  assist- 
ants, clerks,  &c.,  to  execute  his 
orders."  (Life  of  Hamilton,  I. 
281-305.) 


Ch.  VI.]  THE   COKFEDERATION.  355 

was  also  doubtful  whether  they  could  change  the 
Federal  Constitution  by  their  own  dii-ect  action.  To 
these  difficulties  was  to  be  added  the  further  hazard, 
that,  if  the  report  of  the  convention  shoidd  be  made 
to  Congress,  as  proposed,  they  might  not  finally 
adopt  it,  and  if  it  should  be  rejected,  that  fatal 
consequences  would  ensue.^ 

The  report  of  the  Annapolis  commissioners  was, 
however,  taken  into  consideration ;  and  in  the  course 
of  the  following  winter  a  report  upon  it  was  made  in 
Congress,  which  conceded  the  fact  that  the  Confeder- 
ation required  amendments,  and  that  the  proposed 
convention  was  the  most  eligible  mode  of  effecting 
them.^  But  this  report  had  to  encounter  the  objec- 
tion, entertained  by  many  members,  that  the  meas- 
ure proposed  would  tend  to  weaken  the  federal 
authority,  by  lending  the  sanction  of  Congress  to 
an  extra-constitutional  proceeding.  Others  consid- 
ered that  a  more  summary  mode  of  proceedmg  was 
advisable,  in  the  form  of  a  direct  appeal  to  the  peo- 
ple of  every  State  to  institute  State  conventions, 
which  should  choose  delegates  to  a  general  conven- 
tion, to  revise  and  amend,  or  change,  the  federal 
system,  and  to  publish  the  new  constitution  for  gen- 
eral observance,  without  any  reference  to  the  States, 
for  their  acceptance  or  confirmation.^     There  were 

^  Abstract  of  an  Address  made  bates  in  the  Congress  of  the  Con- 
to   the   Legislature   of   Massachu-  federation.     Elliot,  V.  96. 
setts,  by  the  Hon.  Rufus  King,  in  ^  This  was  the  opinion  of  Mr. 
October,  1786.     Boston  Magazine  Jay.     He  thought  that  no  altera- 
for  the  year  1786,  p.  406.  tions  should  be  attempted,  unless 

2  Mr.  Madison's  Notes  of  De-  deduced  from  the  only  source  of 


356  THE  FEDEKAL  CONSTITUTION.  [Book  III. 

still  others,  who  preferred  that  Congress  should  take 
up  the  defects  of  the  existmg  system,  pouit  them  out 
to  the  legislatures  of  the  States,  and  recommend  cer 
tain  distmct  alterations  to  be  adopted  by  them.-^ 

It  was  no  doubt  true,  that  a  convention  origmat 
ing  with  the  State  legislatures  was  not  a  mode 
pointed  out  by  the  Articles  of  Confederation  for 
effecting  amendments  to  that  instrument.  But  it 
was  equally  true,  that  the  mere  amendment  of  that 
instrument  was  not  what  the  critical  situation  of  the 
country  required.  On  the  other  hand,  a  convention 
origmating  with  the  people  of  the  States  would  un- 
doubtedly rest  upon  the  authority  of  the  people,  in 
its  inception ;  but,  if  the  system  which  it  might  frame 
were  to  go  into  operation  without  first  being  adopted 
by  the  people,  it  would  as  certainly  want  the  true 
basis  of  their  consent.  These  difficulties  were  felt 
in  and  out  of  Congress.  But  it  does  not  seem  to 
have  occurred  to  those  who  raised  them,  that  the 
source  from  which  the  convention  should  derive  its 
powers  to  frame  and  recommend  a  new  system  of 
government  was  of  far  less  consequence,  than  that 
the  mode  in  which  the  system  recommended  should 
be  adopted,  should  be  one  that  would  give  it  the 

just  authority,    the    people.      He  without  further  sanction.     See  his 

seems  to  have  considered  that,  if  letter  to   General  Washington,  of 

the  people  of  the   States,  acting  date  January  7,  1787.     Writings 

through  their  primary  conventions,  of  Washington,  IX.  510. 
were  to  send  delegates  to  a  gen-  ^  Letter  of  General    Knox    to 

eral  convention,  with  authority  to  General  Washington,  January  14, 

alter   the    Articles  of  Confedera-  1787.      Writings  of  Washington, 

tion,  the  new  system   would   rest  IX.  513. 
upon  the  authority  of  the  people, 


Ch.  VI.]  THE    CONFEDERATION.  357 

full  sanction  and  authority  of  the  people  themselves. 
A  constitution  might  be  framed  and  recommended 
by  any  body  of  mdividuals,  whether  instituted  by  the 
legislatures  or  by  the  people  of  the  States ;  but  if 
adopted  and  ordained  by  the  States  in  their  corpo- 
rate capacities,  it  would  rest  on  one  basis,  and  if 
adopted  and  ordained  by  the  people  of  the  States, 
acting  upon  it  directly  and  primarily,  it  woidd  ob- 
viously rest  upon  another,  a  different,  and  a  higher 
authority. 

The  latter  mode  was  not  contemplated  by  Con- 
gress when  they  acted  upon  the  recommendation  of 
the  Annapolis  commissioners.  Accustomed  to  no 
other  idea  of  a  union  than  that  formed  by  the  States 
in  their  corporate  capacities  as  distmct  and  sover- 
eign communities ;  belonging  to  a  body  constituted 
by  the  States,  and  therefore  officially  related  rather 
to  the  governments  than  to  the  people  of  the  States ; 
and  entertaining  a  becoming  and  salutary  fear  of  de- 
parting from  a  constitution  which  they  had  been  ap- 
pointed to  administer,  —  the  members  of  the  Con- 
gress of  1786-87  were  not  likely  to  go  beyond  the 
Annapolis  recommendation,  which  ui  fact  proposed 
that  the  new  system  should  be  confirmed  by  the 
legislatures  of  the  States. 

But  the  course  of  events  tended  to  a  different  re- 
sult, —  to  an  actual,  although  a  peaceable  revolution, 
by  the  quiet  substitution  of  a  new  government  in 
place  of  the  old  one,  and  resting  upon  an  entirely 
different  basis.  Wliile  Congress  were  debating  the 
objections  to  a  convention,  the  necessity  for  action 


358  THE  FEDERAL  CONSTITUTION.  [Book  m 

became  every  clay  more  stringent.  The  insurrection 
in  Massachusetts,  which  had  followed  the  meeting 
of  the  commissioners  at  Annapolis  and  had  reached 
a  dangerous  crisis  when  their  report  was  before  Con- 
gress, had  alarmed  the  people  of  the  older  States  by 
the  dangers  of  an  anarchy  with  which  the  existing 
national  government  would  be  obviously  unable  tc 
cope.  The  pei'il  of  losing  the  navigation  of  the  Mis- 
sissippi, and  with  it  the  Western  settlements,  through 
the  inefficiency  of  Congress,  was  also  at  that  moment 
impending;  while,  at  the  same  tune,  the  commerce 
of  the  country  was  nearly  annihilated  by  a  course  of 
policy  pursued  by  England,  which  Congress  was  ut- 
terly unable  to  encounter.  Under  these  dangers  and 
embarrassments,  a  state  of  public  opinion  was  rajDidly 
developed,  m  the  winter  of  1787,  which  drove  Con 
gress  to  action.  The  objections  to  the  proposal  be- 
fore them  yielded  gradually  to  the  stern  require- 
ments of  necessity,  and  a  convention  was  at  last  ac- 
cepted, not  merely  as  the  best,  but  as  the  only  prac- 
ticable, mode  of  reaching  the  first  great  object  by 
which  an  almost  despairmg  country  might  be  re- 
assured of  its  future  welfare. 

The  final  change  in  the  views  of  Congress  in  re- 
gard to  a  convention  was  produced  by  the  action  of 
the  legislature  of  New  York.  In  that  body,  as  we 
have  seen,  the  impost  system  had  been  rejected,  m 
the  session  of  1786,  and  the  Governor  of  the  State 
had  even  refused  to  reassemble  the  legislature  for  the 
reconsideration  of  this  subject.  A  new  session  com- 
menced in  January,  1787,  in  the  city  of  New  York, 


Oh.  VI.l  THE  CONTEDEEATION.  359 

where  Congress  was  also  sitting.  A  crisis  now  oc- 
curred, in  which  the  influence  of  Hamilton  was  ex- 
erted in  the  same  manner  that  it  had  been  in  the 
former  session,  and  with  a  similar  result.  On  that 
occasion  he  had  followed  up  the  rejection  of  the  im- 
post system  mth  a  resolve  for  the  appointment  of 
commissioners  to  attend  the  meeting  at  Annapohs. 
It  was  now  his  purpose,  in  case  the  impost  system 
should  be  again  rejected,  to  obtain  the  sanction  of 
Congress  to  the  recommendation  of  a  convention, 
made  by  the  Annapolis  commissioners.  This,  he  was 
aware,  could  be  effected  only  by  inducmg  the  legis- 
lature of  New  York  to  mstruct  the  delegates  of  their 
State  in  Congress  to  move  and  vote  for  that  decisive 
measure.  The  majority  of  the  members  of  Congress 
were  indisposed  to  adopt  the  plan  of  a  convention ; 
and  although  they  might  be  brought  to  recommend 
it  at  the  instance  of  a  State,  they  were  not  inclined 
to  do  so  spontaneously.^  The  crisis  requii-ed,  there- 
fore, all  the  address  of  Hamilton  and  of  the  friends 
of  the  Union,  to  bring  the  influence  of  one  of  these 
bodies  to  bear  upon  the  other. 

The  reiterated  recommendation  by  Congress  of  the 
impost  system,  now  addressed  solely  to  the  State 
of  New  York,  who  remained  alone  in  her  refusal, 
necessarily  occupied  the  earliest  attention  of  the  new 
legislature.^     A  warm  discussion  upon  a  bill  intro- 

1  Madison.     Elliot,  V.  96.  legislature  to  consider  tlie  revenue 

2  It  was  brought  before  them  by  system,  "a  subject,"  he  observed, 
the  speech  of  the  Governor  (Clin-  "  vi'hich  had  been  repeatedly  sub- 
ton),  informing  them  of  the  reso-  mittcd  to  them,  and  must  be  well 
lutions  of  Congress,  which  had  re-  understood." 

quested  an  immediate  call   of  the 


360  THE  FEDERAL   CONSTITUTION.  [Book  111 

duced  for  the  purpose  of  effecting  the  grant  as  Con 
gress  had  asked  for  it,  ended,  on  the  15th  of  Febru- 
ary, in  its  defeat.  The  subject  of  a  general  conven- 
tion of  the  States,  according  to  the  plan  of  the  An- 
napolis commissioners,  was  then  before  Congress,  on 
the  rej)ort  of  a  grand  committee ;  ^  and  Congress  were 
hesitating  upon  its  expediency.  At  this  critical  junc- 
ture, Hamilton  carried  a  resolution  in  the  legislature  of 
New  York,  instructing  the  delegates  of  that  State  in 
Congress  to  move  for  an  act  recommending  the  States 
to  send  delegates  to  a  convention  for  the  purpose  of 
revising  the  Articles  of  Confederation,  which,  four 
days  afterwards,  was  laid  before  Congress.^ 

Virginia  and  North  Carolma  had  already  chosen 
delegates  to  the  Convention,  in  compliance  with  the 
recommendation  from  Annapolis ;  and  Massachusetts 
was  about  to  make  such  an  appointment,  under  the 
influence  of  her  patriotic  Bowdoin.  In  this  posture 
of  affairs,  although  the  proposition  of  the  New  York 
delegation  failed  to  be  adopted,^  the  fact  that  she  had 

1  Journals,  XII.  15.  February  their  object  was  to  obtain  a  con- 
21,  1787.  vention    without   having   it   called 

2  Ibid.  The  vote  rejecting  the  under  the  authority  of  Congress, 
impost  bill  was  taken  on  the  15th  or  else,  by  dividing  the  plans  of 
of  February.  The  resolution  of  the  States  in  their  appointments 
instructions  was  passed  on  the  17th,  of  delegates,  to  frustrate  them  all. 
and  was  laid  before  Congress  on  (Madison.  Elliot,  V.  96.)  But 
the  21st.  whatever  grounds  there  might  have 

•*  Mr.  Madison  has  recorded  the  been  for  either  of  these  suspicions, 

suspicions  with  which  this  resolu-  the  latter  certainly   was   not  well 

tion  of  the  New  York  legislature  founded.     The  New  York  resolu- 

was  received.     Their  previous  re-  tion  was  drafted  by  Hamilton,  and 

fusal  of  the  impost  act,  and  their  although  it  was  passed  by  a  body 

known  anti-federal  tendencies,  gave  in  which  a  majority  had  not  exhib- 

rise,  he  says,   to   the  belief  that  ited  a  disposition  to  enlarge  the  au 


Ch.  VI.l 


THE   COISTFEDERATION. 


361 


thus  solicited  the  action  of  Congress  was  of  decisive 
influence,  when  the  members  from  Massachusetts  fol- 
lowed it  immediately  by  a  resolve  more  acceptable  to 
a  majority  of  the  assembly.^ 


thority  of  Congress,  it  was  mani- 
festly not  intended  to  prevent  the 
adoption  of  the  plan  of  a  conven- 
tion. It  contemplated  the  passage 
by  Congress  of  an  act,  recommend- 
ing the  States  to  institute  a  con- 
vention of  representatives  of  the 
States  to  revise  the  Articles  of 
Confederation  ;  and  the  resolution 
introduced  by  the  New  York  dele- 
gation into  Congress  proposed  that 
the  alterations  and  amendments 
which  the  convention  might  con- 
sider necessary  to  render  the  Ar- 
ticles of  Confederation  "  adequate 
to  the  preservation  and  support  of 
the  Union,"  should  be  reported  to 
Congress  and  to  the  States  respec- 
tively, but  did  not  direct  how  they 
should  be  adopted.  This  would 
have  left  open  a  great  question, 
and  seemed  to  be  a  departure  from 
the  mode  in  which  the  Articles  of 
Confederation  directed  that  amend- 
ments should  be  made.  Probably 
it  was  Hamilton's  intention  to 
leave  the  form  in  which  the  new 
system  should  be  adopted  for  fu- 
ture action,  without  fettering  the 
movement  by  prescribing  the  mode 
before  the  convention  had  assem- 
bled. But  this  course  was  practi- 
cally impossible.  Congress  could 
not  be  prevailed  upon  to  recom- 
mend a  convention,  without  mak- 
ing the  condition  that  the  new  pro- 
visions should  be  reported  to  Con- 
voi,.   I.  46 


gress  and  confirmed  by  tne  States. 
Tills  gave  rise  to  great  embarrass- 
ment in  the  convention,  when  it 
came  to  be  admitted  that  the  Con 
federation  must  be  totally  super- 
seded, and  not  amended;  and  it  was 
finally  disregarded.  But  it  was 
the  only  mode  in  which  the  con- 
vention could  have  been  recom- 
mended by  Congress,  and  without 
that  recommendation,  probably,  it 
could  not  have  been  instituted. 

1  The  resolution  introduced  by 
the  Massachusetts  delegation,  when 
that  of  New  York  had  been  reject' 
ed,  after  being  amended,  was  final- 
ly passed  in  the  following  terms  : 
"  Whereas,  there  is  provision  in 
the  Articles  of  Confederation  and 
Perpetual  Union  for  making  alter- 
ations therein,  by  the  assent  of  a 
Congress  of  the  United  States,  and 
of  the  legislatures  of  the  several 
States  ;  and  whereas  experience 
hath  evinced  that  there  are  defects 
in  the  present  Confederation,  as  a 
mean  to  remedy  which  several  of 
the  States,  and  particularly  the 
State  of  New  York,  by  express 
instructions  to  their  delegates  in 
Congress,  have  suggested  a  con- 
vention for  the  purposes  expressed 
in  the  following  resolution  ;  and 
such  a  convention  appearing  to  be 
the  most  probable  means  of  estab- 
lishing in  these  States  a  firm  na- 
tional government,  Resolved,  That, 


362 


THE  FEDERAL  CONSTITUTION. 


[Book  HI 


The  recommendation,  as  it  went  forth  from  Con 
gross,  was  strictly  limited  to  a  revision  of  the  Arti 
cles  of  Confederation,  by  a  convention  of  delegates, 
and  the  alterations  and  new  provisions  were  to  be 
reported  to  Congress,  and  were  to  be  agreed  to  in 
Congress  and  confirmed  by  the  States.  Thus  the 
resolution  pursued  carefully  the  mode  of  amendment 
and  alteration  provided  by  the  Articles  of  Confedera- 
tion, except  that  it  interposed  a  convention  for  the 
purpose  of  originating  the  changes  to  be  proposed  in 
the  existing  form  of  government;  adding,  however, 
the  great  general  purpose  of  rendering  the  Federal 
Constitution  adequate  to  the  exigencies  of  govern- 
ment and  the  preservation  of  the  Union. 

The  point  thus  gained  was  of  vast  and  decisive  im- 
portance. That  Congress  should  forego  the  right  of 
originating  changes  in  the  system  of  government;^ 
that  it  should  advise  the  States  to  confer  that  power 


ia  the  opinion  of  Congress,  it  is 
expedient  that,  on  the  second  Mon- 
day in  May  next,  a  convention  of 
delegates,  who  shall  have  been  ap- 
pointed by  the  several  States,  be 
held  at  Philadelphia,  for  the  sole 
and  express  purpose  of  revising  the 
Articles  of  Confederation,  and  re- 
porting to  Congress  and  the  sever- 
al legislatures  such  alterations  and 
provisions  therein  as  shall,  when 
agreed  to  in  Congress  and  confirmed 
by  the  States,  render  the  Federal 
Constitution  adequate  to  the  exi- 
gencies of  government  and  the  pres- 
ervation of  the  Union."  Journals, 
XII.  17.     February  21,  1787 


1  The  Articles  of  Confedera- 
tion did  not  expressly  require  that 
amendments  should  be  prepared 
and  proposed  in  Congress.  The 
thirteenth  Article  provided,  that 
no  alteration  should  be  made,  un- 
less it  should  "be  agreed  to  in  a 
Congress  of  the  United  States,  and 
be  afterwards  confirmed  by  the  leg 
islatures  of  every  State."  But  it 
was  clearly  implied  by  this,  that 
Congress  were  to  have  the  power 
of  recommending  alterations,  and 
this  power  was  exercised  in  1783, 
with  regard  to  the  rule  of  appor- 
tionment. 


Ch.  vi.j  the  contederation.  363 

upon  another  assembly ;  and  that  it  should  sanction 
a  general  revision  of  the  Federal  Constitution,  with 
the  express  declaration  of  its  present  madequacy,  — 
were  all  prelinimaries  essential  to  a  successful  reform. 
Feeble  as  it  had  become  from  the  overgrown  vitality 
of  State  power,  and  from  the  lack  of  numbers  and 
talent  upon  its  roll,  it  Avas  still  the  government  of 
the  Union ;  the  Congress  of  America ;  the  lineal  suc- 
cessors of  that  renowned  assembly  which  had  defied 
the  power  of  England,  and  brought  into  existence 
the  thkteen  United  States.  If  it  stood  but  the  poor 
shadow  of  a  great  name,  it  was  still  a  name  with 
which  to  do  more  than  conjure ;  for  it  bore  a  con- 
stitutional relation  to  the  States,  still  reverenced  by 
the  wise  and  thoughtful,  and  still  necessary  to  be 
regarded  by  all  who  desired  the  security  of  con- 
stitutional liberty.  The  risk  of  immediate  attempts 
to  establish  a  monarcliical  form  of  government  was 
not  inconsiderable.  The  risk  that  civil  confusion 
would  follow  a  longer  delay  to  provide  for  the 
pressing  wants  of  the  country  was  greater.  De- 
jection and  despondency  had  taken  hold  of  many 
mmds  of  the  highest  order ;  while  the  great  body  of 
the  people  were  desiring  a  change  which  they  could 
not  define,  and  which  they  feared,  while  they  invited 
its  approach.  In  such  a  state  of  things,  considerate 
men  were  naturally  unwilling  to  turn  entirely  away 
from  Congress,  or  to  exclude  its  agency  altogether 
from  the  processes  of  reform,  and  to  embark  upon  the 
uncertain  sea  of  political  experiment,  without  chart 
or  rule  to  ojuide  their  course ;  for  no  man  could  tell 


364  THE  FEDERAL  CONSTITUTION.  [Book  III. 

what  projects,  what  schemes,  and  what  influences 
might  arise  to  jeopard  those  great  principles  of  re- 
pubKcan  Uberty  on  which  the  political  fabric  had 
rested  from  the  Declaration  of  Independence  to  the 
present  hour  of  danger  and  distress. 

For  the  wise  precedent,  thus  established,  of  pla 
cing  the  formation  of  a  new  government  under  the 
direct  sanction  of  the  old  one,  the  people  of  this 
country  are  indebted  chiefly  to  Hamilton.  Nothing 
can  be  more  unfortunate,  in  any  country,  than  the 
necessity  or  the  rashness  which  sweeps  away  an  es- 
tablished constitution,  before  a  substitute  has  been 
devised.  Whether  the  interval  be  occupied  by  pro- 
visional arrangements  or  left  to  a  more  open  anar- 
chy, it  is  an  unfit  season  for  the  creation  of  new 
institutions.  At  such  a  time,  the  crude  projects  of 
theorists  are  boldly  intruded  among  the  deliberations 
of  statesmen ;  despotism  lies  in  wait  for  the  hazards 
by  which  liberty  is  surrounded ;  the  multitude  are 
unrestrained  by  the  curb  of  authority ;  and  society  is 
exposed  to  the  necessity  of  accepting  whatever  is  of- 
fered, or  of  submitting  to  the  first  usurper  who  may 
seize  the  reins  of  government,  because  it  has  nothing 
on  which  to  rest  as  an  alternative.  True  liberty  has 
gained  nothmg,  in  any  age  or  country,  from  revolu- 
tions, which  have  excluded  the  possibility  of  seeking 
or  obtaining  the  assent  of  existing  power  to  the  re- 
forms which  the  progress  of  society  demands. 

In  the  days  when  the  Confederation  was  tottering 
to  its  fall;  when  its  revenues  had  been  long  ex- 
hausted ;  and  when  its  Congress  embraced,  in  actual 


Ch.  VI.]  THE   CONFEDERATION.  365 

attendance,  less  than  thirty  delegates  from  only  elev- 
en of  the  States,  it  would  have  been  the  easy  part 
of  a  demagogue  to  overthrow  it  by  a  sudden  appeal 
to  the  passions  and  interests  of  the  houi-,  as  the 
first  step  to  a  radical  change.^  But  the  great  man, 
whose  mature  and  energetic  youth,  trained  in  the 
school  of  Washington,  had  been  devoted  to  the  for- 
mation and  establishment  of  the  Union,  knew  too 
well,  that,  if  its  golden  cord  were  once  broken,  no 
human  agency  could  restore  it  to  life.  He  knew  the 
value  of  habit,  the  respect  for  an  established,  how- 
ever enfeebled  authority ;  and  while  he  felt  and  in- 
sisted on  the  necessity  for  a  new  constitution,  and 
did  all  in  his  power  to  make  the  country  perceive 
the  defects  of  the  old  one,  he  wisely  and  honestly 
admitted  that  the  assent  of  Congress  must  be  gained 
to  any  movement  which  proposed  to  remedy  the  evil. 
But  the  reason  for  not  moving  the  revision  of  the 
system  of  government  by  Congress  itself  was  one  that 
could  not  be  publicly  stated.  It  was,  that  the  highest 
civil  talent  of  the  country  was  not  there.     The  men 

1  Governor    Randolph    of   Vir-  day  brings  forth  some  new  crisis, 

ginia,  writing  to  General  Wash-  and  the  Confederation  is,   I  fear, 

ington,   on    the    Uth    of   March,  the  last  anchor  of  our  hope.     Con- 

1787,  and   urging  him   to   attend  gress  have  taken  up  the  subject, 

the    Convention,   said  :    "  I   must  and  appointed  the  second  Monday 

call  upon  your  friendship  to  excuse  in  May  next  as  the  day  of  meeting, 

me  for  again  mentioning  the  Con-  Indeed,  from  my  private  correspond- 

vention  at  Philadelphia.     Your  de-  ence,  I  doubt  lohcthcr  the  cxiste?icc 

termination  having  been  fixed  on  of  that  body,  even  through  this  year, 

a  thorough  review  of  your  situa-  may  not  be  questionable  under  our 

tion,  I  feel  like  an  intruder  when  present   circumstances.^''      Sparkss 

I  again  hint  a  wish  that  you  would  Washington,  IX.  243,  note. 
join   the   delegation.      But   every 


.S66  THE  FEDERAL  CONSTITUTION.  [Book  III. 

to  whom  the  American  people  had  been  accustomed 
to  look  in  great  emergencies,  —  the  men  who  were 
called  into  the  Convention,  and  whose  jpower  and 
wisdom  were  signally  displayed  in  its  deliberations, 
—  were  then  engaged  in  other  spheres  of  public  life, 
or  had  retired  to  the  repose  which  they  had  earned 
in  the  great  struggle  with  England.  Had  the  at- 
tempt been  made  by  Congress  itself  to  form  a  consti- 
tution for  the  acceptance  of  the  States,  the  control- 
ling influence  and  wisdom  of  Washington,  Franldin's 
wide  experience  and  deep  sagacity,  the  unrivalled 
capacities  of  Hamilton,  the  brilliant  powers  of  Gou- 
vemeur  Morris,  Pinckney's  fertility,  and  Randolph's 
eloquence,  with  all  the  power  of  their  eminent  col- 
leagues and  all  the  strength  of  prmciple  and  of  char 
acter  which  they  brought  to  the  Convention,  would 
have  been  withheld  from  the  effort.  One  great  man, 
it  is  true,  was  still  there.  Madison  was  in  Congress  • 
and  Madison's  part  in  the  framing  of  the  Constitu 
tion  Avas  eminently  conspicuous  and  useful.  But 
without  the  concentration  of  talent  which  the  Con- 
vention drew  together,  representing  every  interest 
and  every  part  of  the  Union,  nothing  could  have 
been  presented  to  the  States,  by  the  Congress  of 
1787,  which  would  have  commanded  their  assent. 
The  Constitution  owed  as  much,  for  its  acceptance, 
to  the  weight  of  character  of  its  framers,  as  it  did  to 
their  wisdom  and  ability,  for  the  intrinsic  merits 
which  that  weight  of  character  enforced. 

It  was  fortunate,  also,  that  Congress  did  nothing 
more  than  to  recommend  the  Convention,  without 


Ch.  Vl.J 


THE   COXFEDERATION. 


367 


undertaking  to  define  its  powers.  The  doubts  con- 
cerning its  legality,  which  led  many  persons  of  great 
influence  to  hesitate  in  sanctionmg  it,  were  thus  re- 
moved, and  the  States  were  left  free  to  join  in  the 
movement,  as  an  expedient  to  discover  and  remedy 
the  defects  of  the  federal  government,  without  fetter- 
ing their  delegates  mth  explicit  instructions.-^      In 


1  The  States  of  Virginia,  New 
Jersey,  Pennsylvania,  North  Caro- 
lina, and  Delaware  had  appointed 
their  delegates  to  the  Convention 
before  it  was  sanctioned  by  Con- 
gress. Virginia  led  the  way  ;  and 
the  following  preamble  to  her  act 
shows  with  what  motives  and  ob- 
jects she  did  so.  "  Whereas,  the 
commissioners  who  assembled  at 
Annapolis,  on  the  14th  day  of  Sep- 
tember last,  for  the  purpose  of  de- 
vising and  reporting  the  means  of 
enabling  Congress  to  provide  effec- 
tually for  the  commercial  interests 
of  the  United  States,  have  repre- 
sented the  necessity  of  extending 
the  revision  of  the  federal  system 
to  all  its  defects,  and  have  recom- 
mended that  deputies  for  that  pur- 
pose be  appointed  by  the  several 
legislatures,  to  meet  in  convention 
in  the  city  of  Philadelphia,  on  the 
2d  day  of  May  next,  —  a  provision 
which  was  preferable  to  a  discus- 
sion of  the  subject  in  Congress, 
where  it  might  be  too  much  inter- 
rupted by  the  ordinary  business 
before  them,  and  where  it  would, 
besides,  be  deprived  of  the  valuable 
counsels  of  sundry  individuals  who 
are  disqualified  by  the  constitution 
or  laws  of  particular  States,  or  re- 


strained by  peculiar  circumstances 
from  a  seat  in  that  assembly  :  And 
whereas  the  General  Assembly  of 
this  Commonwealth,  taking  into 
view  the  actual  situation  of  the 
Confederacy,  as  well  as  reflecting 
on  the  alarming  representations 
made  from  time  to  time  by  the 
United  States  in  Congress,  partic- 
ularly in  their  act  of  the  15th  day 
of  February  last,  can  no  longer 
doubt  that  the  crisis  is  arrived  at 
which  the  good  people  of  America 
are  to  decide  the  solemn  question, 
whether  they  will,  by  wise  and 
magnanimous  efforts,  reap  the  just 
fruits  of  that  independence  which 
they  have  so  gloriously  acquired, 
and  of  that  Union  which  they  have 
cemented  with  so  much  of  their 
common  blood,  —  or  whether,  by 
giving  way  to  unmanly  jealousies 
and  prejudices,  or  to  partial  and 
transitory  interests,  they  will  re- 
nounce the  auspicious  blessings 
prepared  for  them  by  the  Revo- 
lution, and  furnish  to  its  enemies 
an  eventful  triumph  over  those  by 
whose  virtue  and  valor  it  has  been 
accomplished :  And  whereas  the 
same  noble  and  extended  policy, 
and  the  same  fraternal  and  affec- 
tionate sentiments,  which  originally 


868 


THE  FEDERAL  CONSTITUTION. 


[Book  Hi. 


this  way  the  Convention,  although  experimental  and 
anomalous,  derived  its  influence  from  the  sources  in 
which  it  originated,  and  was  enabled,  though  not 
without  difficulty,  to  meet  the  crisis  in  w^liich  tlie 
country  was  placed.  That  crisis  was  one  of  a  singu- 
lar  character;  for  the  continued  existence  of  the 
Union,  and  the  fate  of  republican  governments,  were 
both  involved.  It  was  felt  and  admitted  by  the 
wisest  men  of  that  day,  that  if  the  Convention  should 
fail  in  devising  and  agreeing  upon  some  system  of 
go^'ernment,  at  once  capable  of  pervading  the  coun- 


determined  the  citizens  of  this  Com- 
monwealth to  unite  with  their  breth- 
ren of  the  other  States  in  establish- 
ing a  federal  government,  cannot 
but  be  felt  with  equal  force  now  as 
motives  to  lay  aside  every  inferior 
consideration,  and  to  concur  in 
such  further  concessions  and  pro- 
visions as  may  be  necessary  to  se- 
cure the  great  objects  for  which 
that  government  was  instituted, 
and  to  render  the  United  States  as 
happy  in  peace  as  they  have  been 
glorious  in  war :  Be  it  therefore 
enacted,  &c.,  That  seven  commis- 
sioners be  appointed,  by  joint  bal- 
lot of  both  houses  of  Assembly, 
who,  or  any  three  of  them,  are 
herel)y  authorized  as  deputies  from 
this  Commonwealth  to  meet  such 
deputies  as  may  be  appointed  and 
authorized  by  other  States,  to  as- 
semble in  convention  at  Philadel- 
phia, as  above  recommended,  and 
to  join  with  them  in  devising  and 
discussing  all  such  alterations  and 
further  provisions  as  may  be  neces- 


sary to  render  the  Federal  Consti- 
tution adequate  to  the  exigencies 
of  the  Union  ;  and  in  reporting 
such  an  act,  for  that  purpose,  to 
the  United  States  in  Congress,  as, 
when  agreed  to  by  them,  and  duly 
confirmed  by  the  several  States, 
will  effectually  provide  for  the 
same."  (Elliot,  I.  132.)  The 
instructions  of  New  Jersey  to  her 
delegates  were,  "  to  take  into  con- 
sideration the  state  of  the  Union  as 
to  trade  and  other  important  ob- 
jects, and  of  devising  such  other 
provisions  as  shall  appear  to  be  ne- 
cessary to  render  the  constitution 
of  the  federal  government  adequate 
to  the  exigencies  thereof."  (Ibid. 
128.)  The  act  of  Pennsylvania 
provided  for  the  appointment  cf 
deputies  to  join  with  the  deputies 
of  other  States  "in  devising,  de- 
liberating on,  and  discussing  all 
such  alterations  and  further  pro- 
visions as  may  be  necessary  to  ren- 
der the  Federal  Constitution  fullv 
adequate  to  the  exigencies  of  the 


Uh.  VI. ] 


THE   CONFEDERATION. 


369 


try  with  an  efficient  control,  and  essentially  republi- 
can in  its  form,  the  Federal  Union  would  be  at  an 
end.  But  its  dissolution,  in  the  state  in  which  the 
country  then  was,  must  have  been  followed  by  an  at- 
tempt to  establish  monarchical  government ;  because 
the  State  institutions  w^ere  destitute  of  the  strength 
necessary  to  encounter  the  agitation  which  would 
have  followed  the  downfall  of  the  federal  power, 
and  yet  some  substitute  for  that  power  must  have 
been  found.  But  without  ci^il  war,  and  the  most 
frio-htful  social  convulsions,  nothing  ill  the  nature  of 


Union,  and  in  reporting  such  act 
or  acts,  for  that  purpose,  to  the 
United  States  in  Congress  assem- 
bled, as,  when  agreed  to  by  them, 
and  duly  confirmed  by  the  several 
States,  will  effectually  provide  for 
the  same."  (Ibid.  130.)  The  in- 
structions of  Delaware  were  of  the 
same  tenor.  (Ibid.  131.)  The  act 
of  North  Carolina  directed  her  dep- 
uties "  to  discuss  and  decide  upon 
the  most  effectual  means  to  remove 
the  defects  of  our  Federal  Union, 
and  to  procure  the  enlarged  pur- 
poses which  it  was  intended  to 
effect ;  and  that  they  report  such 
an  act  to  the  General  Assembly  of 
this  State,  as,  when  agreed  to  by 
them,  will  effectually  provide  for 
the  same."  (Ibid.  135.)  The  in- 
structions to  the  delegates  of  New 
Hampshire  were  of  the  same  tenor. 
(Ibid.  12G.)  The  appointment  of 
the  delegates  of  INIassachusetts  was 
.Tiade  with  reference  to  the  terms 
of  the  resolve  of  Congress  recom- 
mending the  Convention,  and  for 
vol..  I.  47 


the  purposes  declared  therein.  (Ibid. 
126,  127.)  The  appointment  of 
Connecticut  was  made  with  the 
same  reference,  and  with  the  fur 
ther  direction  "  to  discuss  upon 
such  alterations  and  provisions, 
agreeably  to  the  general  principles 
of  republican  government,  as  they 
shall  think  proper  to  render  the 
Federal  Constitution  adequate  to 
the  exigencies  of  government  and 
the  preservation  of  the  Union  ;  and 
they  are  further  directed,  pursuant 
to  the  said  act  of  Congress,  to  re- 
port such  alterations  and  provis- 
ions as  may  be  agreed  to  by  a  ma- 
jority of  the  United  States  repre- 
sented in  convention,  to  the  Con- 
gress of  the  United  States,  and 
to  the  General  Assembly  of  this 
State."  (Ibid.  127.)  The  reso 
lutions  of  New  York,  Maryland, 
South  Carolina,  and  Georgia  pur- 
sued nearly  the  same  terms  with 
the  resolve  of  Congress.  (Ibid. 
127,  131,  136,  137.) 


370  THE  FEDEKAL  CONSTITUTION.  fBooK  III. 

monai'cliy  could  ever  have  been  established  in  this 
country  after  the  Revolution.  "  Those  who  lean  to  a 
monarchical  government,"  said  Washington,  "  have 
either  not  consulted  the  public  mind,  or  they  live  in 
a  region  which  (the  levellmg  principles  in  which  they 
were  bred  being  entirely  eradicated)  is  much  more 
productive  of  monarchical  ideas  than  is  the  case  in 
the*  Southern  States,  where,  from  the  habitual  dis 
tinctions  which  have  always  existed  among  the  peo- 
ple, one  would  have  expected  the  first  generation 
and  the  most  rapid  growth  of  them.  I  am  also  clear, 
that,  even  admitting  the  utility,  nay,  necessity,  of 
the  form,  the  period  is  not  arrived  for  adopting  the 
change  without  shaking  the  peace  of  this  country  to 
its  foundation.  That  a  thorough  reform  of  the  pres- 
ent system  is  indispensable,  no  one,  who  has  a  capa- 
city to  judge,  will  deny ;  and  with  hand  and  heart  I 
hope  the  business  will  be  essayed  in  a  full  conven- 
tion. After  which,  if  more  powers  and  more  decision 
are  not  found  in  the  existing  form,  if  it  still  wants 
energy  and  that  secrecy  and  despatch  (either  from 
the  non-attendance  or  the  local  views  of  its  members) 
which  are  characteristic  of  good  government,  and  if 
it  shall  be  found  (the  contrary  of  which,  however,  I 
have  always  been  more  afraid  of  than  the  abuse  of 
them)  that  Congress  will,  upon  all  proper  occasions, 
exert  the  powers  which  are  given  with  a  firm  and 
steady  hand,  instead  of  frittering  them  back  to  the 
States,  where  the  members,  in  place  of  viewing  them- 
selves in  their  national  character,  are  too  apt  to  be 
looking,  —  I  say,  after  this  essay  is  made,  if  the  sys- 


"^ 


Oh.   VI.]  THE   CONFEDERATION.  'oil 

tern  proves  ineiRcient,  conviction  of  the  necessity  of 
a  change  will  be  disseminated  among  all  classes  of 
the  people.  Then,  and  not  till  then,  in  my  opinion, 
can  it  be  attempted  without  involving  all  the  evils 
of  civil  discord."  ^ 

There  were  other  difficulties  besides  those  which 
may  be  called  legal,  or  technical,  attending  this  effort 
to  revise  the  system  of  the  federal  government.  The 
failure  of  that  system,  as  it  had  been  put  in  opera- 
tion in  1781,  had,  to  a  great  extent,  chilled  the  hopes 
of  many  of  the  best  statesmen  of  America.  It  had 
been  established  under  auspices  w^hich  seemed  to 
promise  far  different  fruits  from  those  it  had  actually 
produced.  Its  foundations  were  laid  in  the  patriotism 
and  national  feelmg  of  the  States.  The  concessions 
which  had  been  made  to  secure  a  union  of  republics, 
having  various,  and,  in  some  respects,  conflicting  in- 
terests, seemed  at  first  to  guarantee  the  prompt  and 
faithful  performance  of  its  obligations.  But  this 
fair  promise  had  melted  into  most  unsubstantial  per- 
formance. The  Confederation  was  framed  upon  a 
principle  which  never  has  enabled,  and  probably 
never  will  enable,  a  government  to  become  effective 
and  pennanent,  —  the  jDrinciple  of  a  league. 

Another  and  a  very  serious  cause  for  discourage- 
ment was  the  sectional  jealousy  and  State  pride 
which  had  been  constantly  growing,  from  the  Decla- 
ration of  Independence  to  the  tune  when  the  States 
were  called  upon  to  meet  each  other  upon  broadej 

5  Sparks's  Washington,  IX.  223,  225,  230,  236,  508-590. 


372  THE  FEDERAL  CONSTITUTION.  [Book  III, 

grounds,  and  to  make  even  larger  sacrifices  than 
at  any  former  period.  It  is  difficult  to  trace  to 
all  its  causes  the  feeling  which  has  at  times  ar- 
rayed the  different  extremities  of  this  Union  against 
each  other.  It  was  very  early  developed,  after  the 
different  provinces  were  obliged  to  act  together  for 
their  great  mutual  objects  of  political  independence ; 
but,  even  in  its  highest  paroxysms,  it  has  always  at 
last  found  an  antidote  in  the  deeper  feelmgs  and 
more  sober  calculations  of  a  consistent  patriotism. 
Perhaps  its  prevalence  and  activity  may  with  more 
truth  be  ascribed,  in  every  generation,  to  the  ambi- 
tion of  men  who  find  in  it  a  convenient  instrument 
of  local  influence,  rather  than  to  any  other  cause. 
It  is  certain,  that,  when  it  has  raged  most  violently, 
this  has  been  its  chief  aggravating  element.  The 
differences  of  neither  manners,  institutions,  climate, 
nor  pursuits  would  at  any  time  have  been  sufficient 
to  create  the  perils  to  which  the  Union  of  the  States 
has  occasionally  been  exposed,  without  the  mischiev- 
ous agency  of  men  whose  personal  objects  are,  for 
the  time,  subserved  by  the  existence  of  such  pecu- 
liarities. The  proof  of  this  is  to  be  found  in  the  fact, 
that  the  seasonable  sagacity  of  the  people  has  always 
detected  the  motives  of  those  who  have  sought  to 
employ  their  passions,  and  has  compelled  them  at 
last  to  give  way  to  that  better  order  of  men  who 
have  appealed  to  their  reason. 

The  difficulty  of  getting  the  assent  of  all  the  States 
to  radical  changes  in  the  federal  system,  and  the  un- 
certainty as  to  th<3  mode  i:i  which  such  changes  could 


Ch.  VI.]  THE  CONFEDERATION.  373 

be  effectively  adopted,  were  also  among  the  reasons 
which  led  many  persons  to  regard  the  Convention  as 
an  experiment  of  doubtful  expediency.  The  States 
had  hitherto  acted  only  in  then*  corporate  capacities, 
in  all  that  concerned  the  formation  and  modification 
of  the  Union.  The  idea  of  a  Union  founded  on 
the  direct  action  of  the  people  of  the  States,  in  a  pri- 
mary sense,  and  proceeding  to  establish  a  federal  gov- 
ernment, of  limited  powers,  in  the  same  manner  in 
which  the  people  of  each  State  had  established  their 
local  constitutions,  had  not  been  pubHcly  broached, 
and  was  not  generally  entertained.  Indeed,  there 
was  no  expectation  on  the  part  of  any  State,  when 
the  delegates  to  the  Convention  were  appointed,  that 
any  other  principle  would  be  adopted  as  the  basis  of 
action,  than  that  by  which  the  Ai'ticles  of  Confedera- 
tion contemplated  that  all  changes  should  be  effected 
by  the  action  of  the  States  assembled  in  Congress, 
confirmed  by  the  unanimous  assent  of  the  different 
State  legislatures. 

The  prevailing  feelmg,  among  the  higher  states- 
men of  the  country,  was,  that  the  Convention  was  an 
experiment  of  doubtfid  tendency,  but  one  that  must 
nevertheless  be  tried.  Washington,  Madison,  Jay, 
Knox,  Edmund  Randolph,  have  all  left  upon  record 
the  evidence  of  their  doubts  and  their  fears,  as  well 
as  of  their  convictions  of  the  necessity  for  this  last 
effort  in  fiivor  of  the  preservation  of  a  republican 
form  of  government.^     Hamilton  advanced  to  meet 

1  Sparks's  Washington,  IX.  223,  225,  230,  236,  508  -  520. 


374  THE  FEDERAL  CONSTITUTION.  [Book  IH 

the  crisis,  with  perhaps  less  hesitation  than  any  of 
the  Revolutionary  statesmen.  His  great  genius  for 
political  construction ;  his  large  knowledge  of  the 
means  by  which  a  regulated  liberty  may  be  secured ; 
and  the  long  study  with  which  he  had  contemplated 
the  condition  of  the  comitry,  led  liim  to  enter  the 
Convention  with  more  of  eagerness  and  hope  than 
most  of  its  members.  He  saw,  with  great  clearness, 
that  the  difficulty  which  embarrassed  nearly  all  his 
contemporaries  —  the  question  of  the  mode  of  en 
acting  a  new  constitution  —  was  capable  of  solu- 
tion. He  did  not  propound  that  solution  in  ad- 
vance of  the  assembling  of  the  Convention;  for  it 
was  eminently  necessary  that  the  States  should  not 
be  alarmed  by  the  suggestion  of  a  principle  so  novel 
and  so  imlilve  the  existing  theory  of  the  Union.  But 
he  was  fully  prepared  to  announce  it,  so  soon  as  it 
could  be  received  and  acted  upon. 

It  was  under  such  auspices  and  mtli  such  views 
that  the  Convention  assembled  at  Philadelphia,  on 
the  fourteenth  day  of  May  in  the  year  seventeen 
hundred  and  eighty-seven. 

At  that  time,  the  world  had  witnessed  no  such 
spectacle  as  that  of  the  deputies  of  a  nation,  chosen 
by  the  free  action  of  great  communities,  and  assem- 
bled for  the  purpose  of  thoroughly  reforming  its  con- 
stitution, by  the  exercise,  and  with  the  authority,  of 
the  national  will.  All  that  had  been  done,  both  m 
ancient  and  in  modern  times,  in  forming,  moulding, 
or  modifying  constitutions  of  government,  bore  little 


Ch.  VI.]  THE   COXFEDEKATION.  375 

resemblance  to  the  present  undertaking  of  the  States 
of  America.  Neither  among  the  Greeks  nor  the  Ro- 
mans was  there  a  precedent,  and  scarcely  an  analogy. 
The  ancient  leagues  of  some  of  the  cities  or  repub- 
lics of  Greece  did  not  amount  to  constitutions,  in  the 
sense  of  modern  political  science ;  and  the  Roman  re- 
public was  but  the  domination  of  a  single  race  of  the 
inhabitants  of  a  single  city. 

In  modern  Europe,  we  find  no  trace  of  political 
science  until  after  the  nations  were  divided,  and 
partial  limits  set  to  the  different  orders  and  powers 
of  the  state.  The  feudal  system,  which  acknowl- 
edged no  relations  in  society  but  those  of  lord  and 
serf,  necessarily  forbade  all  consideration  of  any 
forms  of  government  which  were  not  essentially 
founded  on  that  relation ;  and  it  was  not  until  that 
relation  had  been  in  some  degree  broken  in  upon, 
that  there  began  to  be  any  thing  like  theoretical 
inquiries  mto  natural  rights.  When  this  took  place, 
—  at  the  end,  or  towards  the  end,  of  the  Middle 
Ages,  —  the  peculiar  forms  of  the  European  govern- 
ments gave  rise  to  inquiries  into  the  relation  of  sov- 
ereign and  subject.  From  the  beginning  of  the  fif- 
teenth down  to  the  end  of  the  seventeenth  century, 
there  were  occasional  discussions  on  the  Continent, 
growing  out  of  particular  events,  of  such  questions 
as  the  right  of  the  people  to  depose  bad  princes,  and 
how  far  it  was  la^\'ful  to  resist  oppression.  But 
questions  of  constitutional  form,  or  of  the  right  of  the 
people  to  arrange  and  distribute  the  diiferent  powers 
of  government,  or  the  best  mode  of  doing  it,  did  not 
arise  at  all. 


376  THE  FEDERAL  CONSTITUTION.  [Book      t 

In  England,  from  the  time  of  the  Conquest,  until 
Magna  Charta  had  gone  far  towards  destroying  the 
system,  a  feudal  monarchy  had  precluded  all  ques- 
tions touchmg  the  form  or  the  spirit  of  government. 
The  chief  traits  of  the  present  constitution,  which 
arose  in  a  great  measure  from  the  circumstance  that 
the  lower  orders  of  the  nobility  became  gradually  so 
much  amalgamated  with  the  people  as  to  give  rise 
to  the  distinct  power  of  the  commons,  have  all  along 
been  inconsistent  with  the  enactment  of  new  forms 
of  civil  polity  ;  although  from  the  time  of  the  Refor- 
mation to  the  Revolution  of  1688,  the  active  princi- 
ples of  English  freedom  have,  at  diiferent  junctures, 
made  advances  of  the  utmost  importance.  The  foun- 
dations on  which  the  Stuarts  sought  to  establish 
their  throne  were  directly  at  variance  with  the  spirit 
and  pidnciples  of  the  Reformation,  which  totally  de- 
nied the  doctrine  of  passive  and  unlimited  obedience, 
and  which  led  to  the  struggles  that  gave  bii'th  to 
the  Puritans.  Those  severe  reformers,  whose  church 
constitution  was  purely  republican,  naturally  sought 
to  carry  its  principles  into  the  state.  The  result  was 
the  Parliamentary  troubles  of  James  the  First,  the 
execution  of  Charles  the  First  under  the  forms  of 
judicial  proceeding,  and  the  despotism  of  Cromwell 
under  the  forms  of  a  commonwealth.  Charles  the 
Second  returned,  untaught  by  all  that  had  happened, 
to  attempt  the  reestablishmcnt  of  the  Stuart  princi- 
ples of  unlimited  obedience ;  and  James  the  Second, 
who  naturally  united  to  them  the  Catholic  religion, 
being  driven  from  his  kingdom,  the  question  arose 


Ch.  VI.]  THE   CONEEDERATION.  377 

of  a  vacant  throne,  and  how  it  should  be  filled.  In 
all  these  events,  however,  from  the  death  of  Eliza- 
beth to  the  great  discussions  which  followed  the  ab- 
dication of  James  the  Second,  the  idea  of  calling 
upon  the  people  of  England  to  frame  a  government 
of  their  own  choice,  and  to  define  the  limits  and 
powers  of  its  various  departments,  never  arose.  -The 
Convention  Parliament  discussed,  and  were  sum- 
moned to  discuss,  but  a  single  fundamental  ques- 
tion,—  that  involving  the  disposal  of  the  crown. 

Still,  the  political  troubles  of  England  gave  rise  to 
many  theoretical  discussions  of  natural  right,  and  of 
the  origin  and  structure  of  society.  As  soon  as 
Charles  the  First  was  executed,  this  discussion  arose 
abroad,  from  his  friends,  who  wrote,  or  influenced 
others  to  write,  in  defence  of  the  divine  right  of 
kings.  Hobbes  and  Filmer  followed,  in  England,  on 
the  same  side,  and  Milton,  Locke,  and  Algernon 
Sidney  "^indicated  the  natural  and  inalienable  rights 
of  the  subject  and  the  citizen.  In  the  works  of 
these  great  writers,  the  foundations  of  society  are 
examined  "with  an  acuteness  which  has  left  little  to 
be  done  in  the  merely  speculative  part  of  political 
inquiry.  But  the  practical  effect  of  their  theories 
never  went  farther  than  the  promotion,  to  a  greater 
or  less  extent,  of  the  particular  \iews  Avhich  they  de- 
sired to  inculcate  concerning  the  existmg  constitu- 
tion, or  the  particular  events  out  of  which  the  discus- 
sions arose. 

Nor  should  we  forget  what  had  been  done  in 
France,  by  the  wise  and  cautious  Montesquieu,  or  by 


48 


378  TPIE  FEDERAL  CONSTITUTION.  [Book  KL 

the  vehement  and  passionate  Rousseau,  and  the 
writers  of  his  school.  The  former,  drawing  all  his 
views  from  history  and  experience,  undertook  to 
show,  from  the  antecedents  of  each  state,  the  charac- 
ter of  its  constitution,  to  explain  and  develop  its  pe 
cuHar  properties,  and  thence  to  determine  the  prmci 
pies  on  which  its  legislation  should  proceed.  The 
latter,  starting  from  an  entirely  opposite  point,  and 
designing  to  write  a  treatise  on  Politics  in  the  widest 
sense  of  the  term,  became  a  mere  theorist,  and  pro- 
duced only  certain  brilliant  speculations  upon  the 
social  compact,  of  a  purely  democratic  character, 
as  fragments  of  a  work  which  he  never  finished. 
The  crowd  of  writers,  too,  who  preceded,  and  m  part 
created  the  French  Eevolution,  which  was  just  com- 
mencing its  destructive  activity  as  our  Constitution 
was  formed,  really  contributed  nothing  of  practical 
value  to  the  solution  of  such  great  questions  as  the 
mode  of  forming,  vesting,  and  distributing  the  \arious 
branches  of  sovereign  power. 

Thus  there  was  little  for  American  statesmen  of 
that  day  to  look  to,  in  the  way  of  theories  which  had 
been  practically  proved  to  be  sound  and  useful. 
The  constitution  of  England,  it  is  true,  presented  to 
them  certain  great  maxims,  the  application  of  which 
was  not  unsuited  to  the  circumstances  and  habits  of 
a  people  whose  laws  and  institutions  had  been  de- 
rived from  their  English  ancestors  and  their  Eng- 
lish blood.  But  the  constitution  of  England,  em- 
bracmg  the  three  estates  of  Kmg,  Lords,  and  Com- 
mons, had  become  what  it  was,  only  by  the  extortion 


ch.  vi.]  the  confederation.  379 

fi:om  the  crowai  of  the  rights  and  privileges  of  the 
two  orders  of  the  people.  The  American  Revolu- 
tion, on  the  othei  hand,  had  settled,  as  the  funda- 
mental prmciple  of  American  society,  that  all  sover- 
eignty resides  origmaUy  in  the  people;  that  they 
derive  no  rights  by  way  of  grant  from  any  other 
source ;  and  consequently,  that  no  powers  or  privi- 
leges can  exist  hi  any  portion  of  the  people  as  dis- 
tinct from  the  whole.  The  English  constitution 
could,  therefore,  furnish  only  occasional  analogies 
for  particular  details  m  the  structure  of  departments, 
which  might  after  all  really  require  to  be  founded 
on  different  fundamental  principles.  But  the  great 
problem  to  be  solved  — for  which  English  experience 
was  of  no  value — was,  so  to  parcel  out  those  portions 
of  original  sovereignty,  which  the  people  of  the  States 
might  be  wHlmg  to  withdraw  from  their  State  msti- 
tutions,  as  to  constitute  an  efficient  federal  republic, 
which  yet  would  not  control  and  absorb  the  powers 
that  might  be  reserved.  But  to  comprehend  the  re- 
sults that  were  accomplished,  and  to  understand  the 
true  nature  of  the  system  bequeathed  to  us,  it  is 
indispensable  to  examine  in  detail  the  means  and 
processes  by  which  it  was  formed.  Before  we  turn, 
however,  to  this  great  subject,  the  characters  of  the 
prmcipal  framers  of  the  Constitution  demand  our 
attention. 


CHAPTER   VII. 

T:-i3  Framers  of  the  Constitution.  —  Washington,  President  of 
THE  Convention. 

The  narrative  to  which  the  reader  has  thus  far 
attended  must  now  be  interrupted  for  a  while,  that 
he  may  pause  upon  the  threshold  of  an  assembly 
which  had  been  summoned  to  the  grave  task  of 
remodelling  the  constitution  of  this  country,  and 
here  consider  the  names  and  characters  of  the  men 
to  whom  its  responsible  labors  had  been  intrusted. 
The  civil  deeds  of  statesmen  and  lawgivers,  in  estab- 
lishing and  forming  institutions,  incorporating  prin- 
ciples into  the  forms  of  public  administration,  and 
setting  up  the  defences  of  public  security  and  pros- 
perity, are  far  less  apt  to  attract  and  hold  the  atten- 
tion of  mankind,  than  the  achievements  of  military 
life.  The  name,  indeed,  may  be  for  ever  associated 
with  the  w^ork  of  the  hand ;  but  the  mass  of  man- 
kind do  not  study,  admire,  or  repeat  the  deeds  of 
the  lawgiver,  as  they  do  those  of  the  hero.  Yet  he 
who  has  framed  a  law,  or  fashioned  an  institution  in 
which  some  great  idea  is  made  practical  to  the  con- 
ditions of  human  existence,  has  exercised  the  highest 
attributes  of  human  reason,  and  is  to  be  comited 
among  the  benefactors  of  his  race. 


Ch.  VII.]  ITS  FKAMERS.  381 

The  framers  of  the  Constitution  of  the  United 
States  assembled  for  their  work  amidst  difficulties 
and  embarrassments  of  an  extraordinaiy  nature.  No 
general  concert  of  opinion  had  taken  place  as  to 
what  was  best,  or  even  as  to  what  was  possible  to  be 
done.  Whether  it  were  wise  to  hold  a  convention, 
whether  it  were  even  legal  to  hold  it,  and  whether,  if 
held,  it  would  be  likely  to  result  in  any  thing  useful 
to  the  country,  were  pomts  upon  which  the  most 
opposite  opmions  prevailed  in  every  State  of  the 
Union.  But  it  was  among  the  really  fortunate, 
although  apparently  unhappy,  circumstances  under 
which  they  were  assembled,  that  the  country  had 
experienced  much  trial,  suffering,  distress,  and  fail- 
ure. It  has  been  a  disagreeable  duty  to  describe 
the  disasters  and  errors  of  a  period  during  which 
the  national  character  was  subjected  to  the  discipline 
of  adversity.  We  now  come  to  the  period  of  com- 
pensation which  such  discipline  inevitably  brings. 

There  is  a  law  of  the  moral  government  of  the 
universe,  which  ordains  that  all  that  is  great  and 
valuable  and  permanent  in  character  must  be  the 
result,  not  of  theoretical  teaching,  or  natural  aspira- 
tion, —  of  spontaneous  resolve,  or  uninterrupted  suc- 
cess, —  but  of  trial,  of  suffering,  of  the  fiery  furnace 
of  temptation,  of  the  dark  hours  of  disappointment 
and  defeat.  The  character  of  the  man  is  distuio:uish- 
able  from  the  character  of  the  child  that  he  once  was, 
chiefly  by  the  effects  of  this  universal  law.  There 
are  the  same  natural  impulses,  the  same  mental, 
moral,  and  physical  constitution,  with  which  he  was 


382  THE  FEDERAL  CONSTITUTION.  [Book  III. 

bom  into  the  world.  What  is  it  that  has  given  him 
the  strength,  the  fortitude,  the  unchanguig  princi- 
ple, and  the  moral  and  intellectual  power,  which  he 
exhibits  in  after  years'?  It  has  not  been  constant 
pleasure  and  success,  nor  unmingled  joy.  It  has 
been  the  hard  discipline  of  pain  and  sorrow,  the 
stern  teachings  of  experience,  the  struggle  against 
the  consequences  of  his  o-\vn  errors,  and  the  chas- 
tisement mflicted  by  his  own  faults. 

This  law  pertauis  to  all  human  things.  It  is  as 
clearly  traceable  in  its  application  to  the  character 
of  a  people,  as  to  that  of  an  individual ;  and  as  the 
institutions  of  a  people,  when  voluntarily  formed  by 
them  out  of  the  circumstances  of  their  condition, 
are  necessarily  the  result  of  the  previous  disciplme 
and  tbe  past  teachings  of  their  career,  we  can  trace 
this  law  also  in  the  creation  and  growth  of  what  is 
most  valuable  in  their  institutions.  "When  we  have 
so  traced  it,  the  unalterable  relations  of  the  moral 
universe  entitle  us  to  look  for  the  elements  of  great- 
ness and  strength  in  whatever  has  been  the  product 
of  such  teachings,  such  discipline,  and  such  trials. 

The  Constitution  of  the  United  States  was  emi- 
nently the  creature  of  circumstances  ;  — •  not  of  cir 
cumstances  blindly  leading  the  blind  to  an  uncon- 
scious submission  to  an  accident,  but  of  circum- 
stances which  offered  an  intelligent  choice  .of  the 
means  of  happiness,  and  opened,  from  the  experience 
of  the  past,  the  plain  path  of  duty  and  success, 
stretching  onward  to  the  future.  All  that  has  been 
said  in  the  previous  chapters  tends  to  illustrate  this 


Ch.  vn.i 


ITS  FKAMERS.  383 


fact.  We  have  seen  the  American  people,  —  divided 
into  separate  and  isolated  communities,  without  na- 
tionality, except  such  as  resulted  from  a  general  com- 
munity of  origm,  —  undertaking  together  the  work 
of  throwing  off  the  domination  of  their  parent  state. 
We  have  seen  them  enter  upon  this  undertaking  with- 
out forming  any  political  bond  of  a  national  char- 
acter, and  without  instituting  any  proper  national 
agency.  We  have  seen,  that  the  first  government 
which  they  created  was,  practically,  a  mere  general 
council  for  the  recommendation  of  measures  to  be 
adopted  and  executed  by  the  several  constituencies 
represented.  We  have  seen  no  machinery  instituted 
for  the  accomplishment,  by  the  combined  authority 
of  these  separate  communities,  of  the  great  objects  at 
which  they  were  auning;  and  although  in  theory 
the  Revolutionary  Congress  would  have  been  en- 
titled to  assume  and  exercise  the  powers  necessary 
to  accomphsh  the  objects  for  which  it  was  assembled, 
we  have  seen  that  the  people  of  the  country,  from  a 
jealous  and  unreasonable  fear  of  all  power,  would 
not  permit  this  to  be  done. 

The  consequences  of  this  want  of  power  were 
inevitable.  An  army  could  not  be  kept  in  the  field, 
on  a  permanent  footing,  capable  of  holding  the 
enemy  in  check.  The  city  of  New  York  fell  into 
the  hands  of  that  enemy,  the  intermediate  country 
between  that  city  and  the  city  of  PhHadelphia  was 
overrun,  and  from  the  latter  capital,  the  seat  of  the 
general  government,  the  Congress  was  obliged  to  fly 
before  the  invading  foe. 


884  THE  PEDERAL  CONSTITUTION.  [Book  HI 

Taught  by  these  events  that  a  more  effective 
union  was  necessary  to  the  deliverance  of  the  coun- 
try from  a  foreign  yoke,  the  States  at  length  united 
in  the  establishment  of  a  government,  the  leading 
purpose  of  which  was  mutual  defence  against  ex- 
ternal attacks,  and  called  it  a  Confederation.  But 
its  powers  were  so  restricted,  and  its  operations  so 
clogged  and  impeded  by  State  jealousies  and  State 
reservations  of  power,  that  it  lacked  entirely  the, 
means  of  providing  the  sinews  of  war  out  of  the 
resources  of  the  country,  and  was  driven  to  foreign 
loans  and  foreign  arms  for  the  means  of  bringing 
that  war  to  a  close.  A  vast  load  of  debt  was  thus 
accumulated  upon  the  country ;  and,  as  soon  as 
peace  was  established,  it  became  apparent,  that, 
while  the  Confederation  was  a  government  with 
the  power  of  contracting  debts,  it  was  without  the 
power  of  paying  them.  This  incapacity  revealed  the 
existence  of  great  objects  of  government,  without 
which  the  people  of  the  several  States  could  never 
prosper,  and  which,  in  their  separate  capacities,  the 
States  themselves  could  never  accomplish. 

Now  it  is  as  certain  as  history  can  make  any  thing, 
that  the  whole  period,  from  the  commencement  of 
the  war  to  the  end  of  the  Confederation,  was  a 
period  of  great  suffering  to  the  people  of  the  United 
States.  The  trials  and  hardships  of  war  were  suc- 
ceeded by  the  greater  trials  and  hardships  of  a  time 
of  peace,  in  which  the  whole  nation  experienced  that 
greatest  of  all  social  evils,  the  want  of  an  efficient 
and   competent   government.      There   was    a  gloom 


Ch.  Vn.]  ITS  FRAMEES.  385 

upon  the  miiids  of  men,  —  a  sense  of  insecurity,  —  a 
consciousness  that  American  society  was  not  fulfil- 
ling the  ends  of  its  being  by  the  development  of  its 
resources  and  the  discharge  of  its  obligations, — 
which  constituted  altogether  a  discipline  and  a 
chastisement  of  the  whole  nation,  and  which  we 
are  not  at  liberty  to  regard  as  the  mere  accidents 
of  a  world  ungoverned  by  an  overruling  Power. 

It  was  from  the  midst  of  that  discipline  that  the 
American  people  came  to  the  high  undertaking  of 
forming  for  themselves  a  constitution,  by  which  to 
work  out  the  destiny  of  social  life  in  this  Western 
World.  Had  they  essayed  their  task  after  years  of 
prosperity,  and  after  old  institutions  and  old  forms 
of  government  had,  upon  the  whole,  yielded  a  fair 
amount  of  success  and  happiness,  they  would  have 
wanted  that  power  which  comes  only  from  failure 
and  disappointment,  —  the  power  to  adapt  the  best 
remedy  to  the  deepest  social  defects,  and  to  lay  hold 
on  the  future  with  the  strength  given  by  the  hard 
teachings  of  the  past. 

Civil  liberty,  —  American  liberty,  —  that  liberty 
which  resides  in  law,  which  is  protected  by  great  in- 
stitutions and  upheld  by  the  machinery  of  a  popular 
government,  —  is  not  simply  the  product  of  a  desire, 
or  a  detei-mination,  to  be  free.  Such  liberty  comes, 
if  it  comes  at  all,  only  after  serious  mistakes,  —  after 
frightful  deficiencies  have  taught  men  that  power 
must  be  lodged  somewhere.  It  comes  when  a  people 
have  learned,  by  adversity  and  disappointment,  that 
a  total  negation  of  all  authority,  and  a  jealousy  of  all 

VOL.  I.  49 


386  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

restraint,  can  end  only  in  leaving  society  without  the 
defences  and  securities  which  nothing  but  law  can 
raise  for  it.  It  comes  when  the  passions  are  ex- 
hausted, and  the  rivalries  of  opposmg  mterests  have 
worn  themselves  out,  in  the  vain  endeavor  to  reach 
what  reason  and  justice  and  self-sacrifice  alone  can 
procure.  Then,  and  then  only,  is  the  intellect  of  a 
nation  sure  to  operate  with  the  fideUty  and  energy 
of  its  native  power.  Then  only  does  it  grasp  the 
principles  of  freedom  with  the  ability  to  incorpo- 
rate them  into  the  practical  forms  of  a  public  ad- 
mmistration  whose  strength  and  energy  shall  give 
them  vitality,  and  prevent  their  diffusion  into  the 
vagueness  of  mere  abstractions,  which  return  to  so- 
ciety the  cold  and  mockmg  gift  of  a  stone  for  its 
craving  demand  of  bread. 

The  Convention  was  a  body  of  great  and  disinter- 
ested men,  competent,  both  morally  and  intellect- 
ually to  the  work,  assigned  them.  High  qualities 
of  character  are  requisite  to  the  formation  of  a  sys- 
tem of  government  for  a  wide  country  with  different 
interests.  Mere  talent  will  not  do  it.  Intellectual 
power  and  ingenuity  alone  cannot  compass  it. 

There  must  be  a  moral  completeness  in  the  char- 
acters of  those  who  are  to  achieve  such  a  work;  for  it 
does  not  consist  solely  in  devising  schemes,  or  creat- 
ing offices,  or  parcelling  out  jurisdictions  and  powers. 
There  must  be  adaptation,  adjustment  of  conflicting 
interests,  reconciliation  of  conflicting  claims.  There 
must  be  the  recognition  and  admission  of  great  expe 


Ch.  vn.] 


ITS  FEAMERS.  387 


clients,  and  the  sacrifice,  often,  of  darling  objects  of 
ambition,  or  of  local  policy,  to  the  vast  central  pur- 
pose of  the  greatest  happiness  of  the  greatest  num- 
ber. Hence  it  is,  that,  wherever  this  mighty  work 
is  to  be  successfully  accomplished,  there  must  be  a 
high  sense  of  justice;  a  power  of  concession;  the 
qualities  of  magnanimity  and  patriotism;  and  that 
broad  moral  sanity  of  the  intellect,  which  is  farthest 
removed  from  fanaticism,  mtolerance,  or  selfish  ad- 
hesion either  to  interest  or  to  opuiion. 

These  quahties  were  preeminently  displayed  by 
many  of  the  fi-amers  of  the  Constitution.  There  was 
certainly  a  remarkable  amount  of  talent  and  intel- 
lectual power  in  that  body.  There  were  men  in  that 
assembly,  whom,  for  genius  in  statesmanship,  and  for 
profound  speculation  in  all  that  relates  to  the  science 
of  government,  the  world  has  never  seen  overmatched. 

But  the  same  men,  who  were  most  conspicuous  for 
these  brilliant  gifts  and  acqukements,  for  their  pro- 
found theories  and  their  acute  perception  of  princi- 
ples, were  happily  the  most  marked,  in  that  assembly, 
for  their  comprehensive  patriotism,  their  justice,  theu^ 
unselfishness  and  magnanimity.  Take,  for  instance, 
Hamilton.  Where,  among  all  the  speculative  phi- 
losophers m  political  science  whom  the  world  has 
seen,  shall  we  find  a  man  of  greater  acuteness  of 
intellect,  or  more  capable  of  devismg  a  scheme  of 
government  which  should  appear  theoretically  per- 
fect 1  Yet  Hamilton's  unquestionable  genius  for 
political  disquisition  and  construction  was  directed 
and  restrained  by  a  noble  generosity,  and  an  unerr- 


388  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

ing  perception  of  the  practicable  and  the  expedient, 
which  enabled  him  to  serve  mankind  without  at- 
tempting to  force  them  to  his  own  plans,  and  with- 
out compelling  them  into  his  own  views.  Take 
Washington,  whose  peculiar  greatness  was  a  moral 
elevation,  which  secured  the  wisest  and  best  use  of 
all  his  powers  in  either  civil  or  military  life.  Take 
Madison,  who  certainly  lacked  neither  abihty  nor 
inclination  for  speculative  inquiries,  and  who  had  a 
mind  capable  of  enforcing  the  application  of  what- 
ever principles  he  espoused.  Yet  his  calm  good 
sense,  and  the  tact  with  which  he  could  adapt  theory 
to  practice,  were  no  less  among  his  prominent  char- 
acteristics. Take  Franklin,  who  sometimes  held  ex- 
treme opinions,  and  occasionally  pushed  his  peculiar 
fancies,  springing  from  an  excess  of  worldly  msdom, 
to  the  utmost  verge  of  truth,  but  whose  intellect  was 
tempered,  and  whose  whole  character  was  softened, 
by  the  wide  and  varied  experience  of  a  life  that  had 
been  commenced  in  obscurity,  and  was  now  closing 
with  the  honors  of  a  reputation  that  filled  the  East- 
ern as  well  as  the  Western  hemisphere.  Take  Gou- 
verneur  Morris,  who  was  ardent,  impulsive,  and  not 
disinclined  to  tenacity  of  opinion  ;  but  he  rose  above 
all  local  and  narrow  objects,  and  embraced,  in  the 
scope  of  his  clear  and  penetratmg  vision,  the  hap- 
piness and  welfare  of  this  whole  continent. 

It  was  a  most  fortunate  thing  for  America,  that 
the  Revolutionary  age,  with  its  hardshij)s,  its  trials, 
and  its  mistakes,  had  formed  a  body  of  statesmen 
capable  of  framing  for  it  a  durable  constitution.    The 


Ch.  vn.]  ITS  FEAIIEES.  389 

leading  persons  in  the  Convention  which  formed 
the  Constitution  had  been  actors,  either  in  ci\il  or 
military  life,  in  the  scenes  of  the  Revolution.  In 
those  scenes  their  characters  as  American  states- 
men had  been  formed.  When  the  condition  of  the 
country  had  fully  revealed  the  incapacity  of  its  gov- 
ernment to  pro\ide  for  its  wants,  these  men  were 
naturally  looked  to,  to  construct  a  system  which 
shoidd  save  it  from  anarchy.  And  their  great  ca- 
pacities, their  high,  disinterested  purposes,  their  free- 
dom from  all  fanaticism  and  illiberahty,  and  theii" 
earnest,  unconquerable  faith  in  the  destiny  of  their 
country,  enabled  them  to  found  that  government, 
which  now  upholds  and  protects  the  whole  fabric 
of  liberty  in  the  States  of  this  Union. 

Of  course  no  such  assembly,  in  that  or  in  any  other 
age,  in  this  or  in  any  other  country,  could  be  called 
together  for  such  a  purpose,  mthout  exhibiting  a 
great  diversity  of  opmions,  wishes,  and  views.  The 
very  object  for  which  they  were  assembled  was  of  a 
nature  to  develop,  to  the  fullest  extent,  the  most 
conflicting  opinions  and  the  most  opposite  theories. 
That  object  was  to  de^dse  a  system  which  should 
best  secure  the  peimanent  liberty  and  happmess  of  a 
vast  country.  What  subject,  in  the  whole  range  of 
human  thought  and  human  endeavor,  could  be  more 
complex  than  this  ^  What  occasion,  among  all  the 
diversities  of  human  affaii's,  coidd  present  a  wider 
field  for  honest  differences  of  opinion,  and  for  severe 
conflicts  of  mind  with  mind  1  Yet  it  should  never 
be  forgotten,  as  the  merit  of  this  assembly,  that,  col- 


390  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

lectively  and  individually,  they  were  animated  by  the 
most  pure  and  exclusive  devotion  to  the  object  for 
which  they  were  called  together.  It  was  this  high 
patriotism,  this  deep  and  never-ceasing  consciousness 
that  the  great  experiment  of  republican  liberty  tui-ned 
on  the  result  of  their  labors,  as  on  the  hazard  of  a 
die,  that  brought  at  last  all  conflicts  of  interest,  all 
diversities  of  opinion  and  feeling,  into  a  focus  of  con- 
ciliation and  unanimity.  More  than  once  the  reader 
will  find  them  on  the  point  of  separating  without 
ha^dng  accomplished  any  thing  ;  and  more  than  once 
he  will  see  them  recalled  to  their  mighty  task  by  the 
eloquence  of  some  master-spirit,  who  knew  how  to 
touch  the  key-note  of  that  patriotic  feeling,  which 
was  never  wholly  lost  in  the  jarring  discords  of  de- 
bate and  intellectual  strife.  For  four  months  the 
laborious  effort  went  on.  The  serene  and  unchang- 
ing presence  of  Washington  presided  over  all.  The 
chivalrous  sincerity  and  disinterestedness  of  Hamil- 
ton pervaded  the  assembly  with  all  the  power  of  his 
fascinating  manners.  The  flashing  eloquence  of 
Gouvemeur  Morris  recalled  the  dangers  of  anarchy, 
which  must  be  accepted  as  the  alternative  of  an 
abortive  experiment.  The  calm,  clear,  statesmanlike 
views  of  Madison,  the  searchmg  and  profound  expo- 
sitions of  King,  the  prudent  influence  of  Franklin, 
at  length  ruled  the  hour. 

In  examining  their  work,  and  in  reading  all  that 
is  left  to  us  of  their  discussions,  we  are  to  consider 
the  materials  out  of  which  they  had  to  frame  a  sys- 
tem of  republican  liberty,  and  the  point  of  \dew,  in 


Ch.  Vn.]  ITS  FRAMEES.  391 

reference  to  the  whole  subject,  at  which  they  stood. 
We  are  to  remember  how  little  the  world  had  then 
seen  of  real  liberty  united  with  personal  safety  and 
public  security ;  and  how  entirely  novel  the  under- 
taking was,  to  form  a  complete  system  of  govern- 
ment, wholly  independent  on  tradition,  exactly  de- 
fined m  a  written  constitution,  to  be  created  at  once, 
and  at  once  set  in  motion,  for  the  accomplishment 
of  the  great  objects  of  human  liberty  and  social 
progress.  The  examples  of  Greece  and  Rome,  the 
modern  republics  of  Italy,  the  federal  relations  of 
the  Swiss  Cantons,  and  the  distant  approach  to  re- 
publicanism that  had  been  seen  in  Holland,  might 
be  resorted  to  for  occasional  and  meagre  illustrations 
of  a  few  general  principles.  But,  unquestionably, 
the  comitry  which,  up  to  that  moment,  had  exhib- 
ited, by  the  working  of  its  government,  the  great- 
est amount  of  liberty  combined  with  the  greatest 
public  security,  was  England.  England,  however, 
was  a  monarchy;  and  monarchy  was  the  system 
which  they  both  desired,  and  were  obliged,  to  avoid. 
If  it  was  Avithin  the  range  of  human  possibility  to 
establish  a  system  of  republican  government,  which 
would  fulfil  its  appropriate  duties,  over  this  vast  and 
rapidly  extendmg  country,  that  they  felt,  one  and  all, 
to  be  their  great  task.  On  the  other  hand,  they 
knew  that,  if  to  that  form  they  could  not  succeed 
in  givuig  due  stability  and  wisdom,  it  would  be,  in 
the  words  of  Hamilton,  "disgraced  and  lost  among 
ourselves,  disgraced  and  lost  to  mankind  for  ever."^ 

1  Madison's  Debates  in  the  Federal  Convention.     Elliot,  V.  244. 


392  THE  FEDERAL  CONSTITUTION.  [Book  IH, 

Here  was  their  trial,  —  the  difficulty  of  all  their 
difficulties;  and  it  was  here  that  they  exhibited  a 
wisdom,  a  courage,  and  a  capacity,  which  have  been 
sui-passed  by  no  other  body  of  lawgivers  ever  assem- 
bled in  the  world. 

Their  country  had,  a  few  years  before,  X3assed 
through  a  long  and  distressing  war  with  its  parent 
state.  The  yoke  of  her  domination  had  been  thrown 
off,  and  its  removal  was  naturally  followed  by  a 
loosening  of  the  bands  of  all  authority,  and  an  indis- 
position to  all  new  restraints.  The  American  Colo- 
nies had  become  independent  States ;  and  as  the 
spirit  of  liberty  which  pervaded  them  made  indi- 
viduals impatient  of  control  m  their  political  rela- 
tions, so  the  States  reflected  the  same  spirit  m  their 
corporate  conduct,  and  looked  with  jealousy  and  dis- 
trust upon  all  powers  which  were  not  to  be  exercised 
by  themselves.  Yet  it  was  clear  that  there  were 
powers  and  functions  of  government,  which,  for  the 
absolute  safety  of  the  country,  must  be  withdrawn 
from  the  States,  and  vested  m  some  national  head, 
which  should  hold  and  exercise  them  in  the  name 
of  the  whole,  for  the  good  of  the  whole.  The  great 
question  was,  what  that  national  head  was  to  be; 
and  the  great  service  performed  by  the  framers  of 
the  Constitution  consisted  in  devising  a  system  by 
which  a  national  sovereignty  might  be  endowed  with 
energy,  dignity,  and  power,  and  the  forms  and  sub- 
stance of  popular  liberty  still  be  preserved ;  a  system 
by  which  a  supreme  authority  in  all  the  matters 
which  it  touched  might  be  created,  resting  directly 


Ch   Vn.]  WASHINGTON.  393 

on  the  popular  will,  and  to  be  exercised,  in  all  com- 
ing time,  through  forms  and  institutions  under  which 
that  will  should  have  a  direct  and  perpetual  and 
perpetually  renewed  expression.  This  they  accom- 
plished. They  accomplished  it,  too,  without  abolish- 
ing the  State  governments,  and  without  impairing  a 
single  personal  right  which  existed  before  they  began 
their  work.  They  accomplished  it  without  \iolence ; 
without  the  disruption  of  a  shigle  fibre  in  that  whole 
delicate  tissue  of  which  society  is  made  up.  No  drop 
of  blood  was  shed  to  establish  this  government,  the 
work  of  their  hands  ;  and  no  moment  of  mtermption 
occurred  to  the  calm,  even  tenor  of  the  pursuits  of 
men,  —  the  daily  on-goings  of  society,  in  which  the 
stream  of  human  life  and  happiness  and  progress 
flows  on  m  beneficence  and  peace. 

First  upon  the  list  of  those  who  had  been  called 
together  for  this  great  purpose,  we  are  to  mention 
him,  without  whose  presence  and  countenance  all 
men  felt  that  no  attempt  to  meliorate  the  political 
condition  of  the  country  could  succeed. 

I  have  already  given  an  account  of  the  proceedings 
which  led  directly  to  the  calling  of  the  Convention ; 
and  have  mentioned  the  interesting  fact,  that  the 
impulse  to  those  proceedings  was  given  at  Mount 
Vernon.  Thither  General  Washington  had  retired, 
at  the  close  of  the  war,  with  no  thought  of  ever 
engaging  again  in  public  affairs.  He  supposed  that 
for  him  the  scene  was  closed.  "  The  noontide  ot 
life,"  said  he,  m  a  letter  to  the  Marchioness  de  La 

VOL.  I.  50 


394  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

fayette,  "is  now  past,  with  Mrs.  Washington  and 
myself;  and  all  we  have  to  do  is  to  glide  gently 
down  a  stream  which  no  human  effort  can  as- 
cend."^ 

But  wise  and  far-seeing  as  he  was,  he  did  not  fore- 
see how  soon  he  was  to  be  called  from  that  grave 
and  sweet  tranquilHty.  He  was  busy  with  the  con- 
cerns of  his  farm ;  he  was  tasting  the  happiness  of 
home,  from  which  he  had  been  absent  nine  long 
years ;  he  was  "  cultivating  the  affections  of  good 
men,  and  practising  the  domestic  virtues."  But  it 
was  not  in  his  nature  to  be  inattentive  to  the  con- 
cerns of  that  country  for  whose  welfare  he  had  la- 
bored and  suffered  so  much.  He  maintained  an 
active  correspondence  with  several  of  the  most  emi- 
nent and  virtuous  of  his  compatriots  in  different 
parts  of  the  Union;  and  in  that  correspondence, 
running  through  the  years  1784,  1785,  and  1786, 
there  exists  the  most  ample  evidence  of  the  down- 
ward tendency  of  things,  and  of  the  fears  it  ex- 
cited. 

It  had  become  evident  to  him  that  we  never  should 
establish  a  national  character,  nor  be  justly  consid- 
ered and  respected  by  the  nations  of  Europe,  with- 
out enlarging  the  powers  of  the  federal  govern 
ment  for  the  regulation  of  commerce.  The  objec- 
tion which  had  been  hitherto  urged,  that  some  States 
might  be  more  benefited  than  others  by  a  commer- 
cial regulation,  seemed  to  him  to  apply  to  every  mat 

1  Washington's  Writings,  IX.  166. 


Cu.  VII.J  WASHINGTON.  395 

ter  of  general  utility.  "  We  are,"  said  he,  writing  in 
the  summer  of  1785,  "  either  a  united  people  under 
one  head,  and  for  federal  purposes,  or  we  are  thirteen 
independent  sovereignties  eternally  counteracting  each 
other.  If  the  former,  whatever  such  a  majority  of 
the  States  as  the  constitution  points  out  conceives  to 
be  for  the  benefit  of  the  whole,  should,  in  my  humble 
opinion,  be  submitted  to  by  the  minority.  Let  the 
Southern  States  always  be  represented ;  let  them  act 
more  in  union ;  let  them  declare  freely  and  boldly 
what  is  for  the  interest  of,  and  what  is  prejudicial  to, 
their  constituents ;  and  there  will,  there  must  be,  an 
accommodating  spirit.  In  the  establishment  of  a 
navigation  act,  this,  m  a  particular  mamier,  ought 
and  will  doubtless  be  attended  to.  If  the  assent  of 
nine  States,  or,  as  some  propose,  of  eleven,  is  neces- 
sary to  give  validity  to  a  commercial  system,  it  in- 
sures this  measure,  or  it  cannot  be  obtained. 

""Wlierein,  then,  lies  the  danger'?  But  if  your 
fears  are  m  danger  of  being  realized,  cannot  certain 
provisos  in  the  ordmance  guard  against  the  evil? 
I  see  no  difficulty  in  this,  if  the  Southern  delegates 
would  give  their  attendance  in  Congress,  and  follow 
the  example,  if  it  should  be  set  them,  of  adhering 
together  to  counteract  combination.  I  confess  to 
you  candidly,  that  I  can  foresee  no  evil  greater  than 
disunion ;  than  those  unreasonable  jealousies  (I  say 
unreasonable,  because  I  would  have  a  p'oper  jealousy 
always  awake,  and  the  United  States  on  the  watch 
to  prevent  individual  States  from  infi'acting  the  con- 
stitution with  impunity)  which  are  continually  poi- 


396  THE  FEDERAL  CONSTITUTION.  [Book  III. 

soiling  our  minds  and  filling  them  with  imagmary 
evils  for  the  prevention  of  real  ones."^ 

But,  while  he  desired  to  see  the  ninth  article  of 
the  Confederation  so  amended  and  extended  as  to 
give  adequate  commercial  powers,  he  feared  that  it 
would  be  of  little  avail  to  give  them  to  the  existing 
Congress.  The  members  of  that  body  seemed  to  him 
to  be  so  much  afraid  of  exerting  the  powers  which 
they  already  possessed,  that  they  lost  no  opportunity 
of  surrendering  them,  or  of  referrmg  their  exercise 
to  the  individual  States.  The  speculative  question, 
whether  foreign  commerce  is  of  any  real  advantage 
to  a  country,  he  regarded  as  of  no  importance,  con 
vinced  that  the  spirit  of  trade  which  pervaded  these 
States  was  not  to  be  restrained.  It  behooved  us, 
therefore,  to  establish  just  principles  of  commercial 
regulation,  and  this  could  not,  any  more  than  other 
matters  of  national  concern,  be  done  by  thirteen 
heads  differently  constructed  and  organized.  The 
necessity,  in  fact,  of  a  controlling  power  was  obvi- 
ous, and  why  it  should  be  withheld  was,  he  declared, 
beyond  his  comprehension.  With  these  views,  he 
looked  to  the  Convention  at  Annapolis  as  likely 
to  result  in  a  plan  which  would  give  to  the  federal 
government  efficient  powers  for  all  commercial  pur- 
poses, although  he  regretted  that  more  objects  had 
not  been  embraced  in  the  project  for  the  meeting. 

The  failure  of  this  attempt  to  enlarge  the   com- 
mercial  powers  of  Congress,  and  the  recommenda- 

1  Washington's  Writings,  IX.  121 


Ch.  Vn.]  WASHINGTON.  397 

tion  of  a  general  convention  made  by  the  Annapolis 
commissioners,  placed  the  country  in  an  extremely 
delicate  situation.  Washington  thought,  when  this 
recommendation  was  announced,  that  the  people 
were  not  then  sufficiently  misled  to  retract  their 
error,  and  entertained  some  doubt  as  to  the  conse- 
quences of  an  attempt  to  revise  and  amend  the  Arti- 
cles of  Confederation.  Something,  however,  must 
be  done,  he  said,  or  the  fabric  which  was  certainly 
tottering,  would  inevitably  fall.  "  I  think,"  said  he, 
"  often  of  our  situation,  and  view  it  with  concern. 
From  the  high  ground  we  stood  upon,  from  the 
plain  path  which  invited  our  footsteps,  to  be  so  fall- 
en, so  lost,  is  really  mortifying ;  but  virtue,  I  fear, 
has  in  a  great  degree  taken  its  departure  from  our 
land,  and  the  want  of  a  disposition  to  do  justice  is 
the  source  of  the  national  embarrassments ;  for, 
whatever  guise-  or  color  is  given  to  them,  this  I 
apprehend  is  the  origin  of  the  evils  we  now  feel, 
and  probably  shall  labor  under  for  some  time  yet."  ^ 

At  this  time  the  legislature  of  Virginia  were  act- 
ing upon  the  subject  of  a  delegation  to  the  Federal 
Convention,  and  a  general  wish  was  felt  to  place 
Washington  at  the  head  of  it.  No  opposition  had 
been  made  in  that  body  to  the  bill  introduced  for 
the  purpose  of  organizing  and  instructing  such  a 
delegation,  and  it  was  thought  advisable  to  give  the 
proceeding  all  the  weight  which  could  be  derived 
from  a  single  State.     To  a  private  intimation  of  this 

1  Washington's  Writings,  IX.  167. 


398  THE  FEDEEAL  CONSTITUTION.         [Book  IH. 

desire  of  the  legislature  he  returned  a  decided  refu- 
sal. Several  obstacles  appeared  to  liim  to  put  his 
attendance  out  of  the  question.  The  principal  rea- 
son that  he  assigned  was,  that  he  had  already  de- 
clined a  re-election  as  President  of  the  Society  of  the 
Cincinnati,  and  had  signified  that  he  should  not 
attend  their  triennial  general  meeting,  to  be  held  m 
Philadelphia  in  the  same  month  with  the  Conven- 
tion.^ He  felt  a  great  reluctance  to  do  any  thing 
which  might  give  offence  to  those  patriotic  men,  the 
officers  of  the  army  who  had  shared  with  him  the 
labors  and  dangers  of  the  war.  He  had  declined  to 
act  longer  with  that  Society,  because  the  motives 
and  objects  of  its  founders  had  been  misconceived 
and  misrepresented.  Originally  a  charitable  institu- 
tion, it  had  come  to  be  regarded  as  anti-republican 
in  its  spirit  and  tendencies.  Desiring,  on  the  one 
hand,  to  avoid  the  charge  of  deserting  the  officers 
who  had  nobly  supported  him,  and  had  always 
treated  him  with  the  greatest  attention  and  attach- 
ment; and  wishmg,  on  the  other  hand,  not  to  be 
thought  willing  to  give  his  support  to  an  institution 
generally  believed  incompatible  with  republican  prin- 
ciples,—  he  had  excused  his  attendance  upon  the 
ground  of  the  necessity  of  attending  to  his  private 
concerns.  He  had,  in  truth,  a  great  reluctance  to 
appear  again  upon  any  public  theatre.  His  health 
was  far  from  bemg  finn ;  he  felt  the  need  and  cov- 
eted the  blessing  of  retu'ement  for  the  remainder  of 

1  Washington's  Writings,  IX.  212. 


Ch.  Vn.l  WASHtNGTON.  399 

his  days ;  and  although,  some  modifications  of  the 
Society  whose  first  President  he  had  been,  were 
then  allaying  the  jealousies  it  had  excited,  he  ^\dth- 
drew  fi.'om  this,  the  last  relation  which  had  kept 
him  in  a  conspicuous  public  position. 

But  "Washington  at  Mount  Vernon,  cultivating 
his  estate,  and  rarely  leaving  his  own  farms,  was 
as  conspicuous  to  the  coimtry  as  if  he  were  still 
placed  in  the  most  active  and  important  public  sta- 
tions. All  eyes  were  turned  to  him  in  this  emer- 
gency; all  thoughts  were  employed  in  considering 
whether  his  countenance  and  his  influence  would 
be  given  to  this  attempt  to  create  a  national  gov- 
ernment for  the  States  whose  liberties  he  had  won. 
And  his  friends  represented  to  him,  that  the  posture 
of  public  affau's  would  prevent  any  criticism  on  the 
situation  in  which  the  contemporary  meeting  of  the 
Cincinnati  would  place  him,  if  he  were  to  accept  a 
seat  in  the  Convention.  Still,  when  the  official,  no- 
tice of  his  appointment  came,  in  December,  he  for- 
mally declined,  but  was  requested  by  the  Governor 
of  the  State  to  reserve  his  decision.-^  At  this  mo- 
ment, the  insurrection  in  Massachusetts  broke  upon 
him  like  a  thunderbolt.  "  What,  gracious  God  !  " 
he  exclaimed,  "  is  man,  that  there  should  be  such 
inconsistency  and  perfidiousness  in  his  conduct !  It 
was  but  the  other  day  that  we  were  shedding  ovix 
blood  to  obtain  the  constitutions  imder  which  we 
now   live,  —  constitutions   of  our   o^vn   choice   and 

1  Washington's  Writings,  IX.  219. 


400  THE  FEDERAL  CONSTITUTION.  [Book  IK. 

maldtig, — and  now  we  are  unsheathing  the  sword 
to  overturn  them !  The  thing  is  so  unaccountable, 
that  I  hardly  know  how  to  realize  it,  or  to  per- 
suade myself  that  I  am  not  under  the  illusion  of  a 
dream."  ^ 

It  was  clear  that,  in  case  of  civil  discord  and  open 
confusion  extending  through  any  considerable  part 
of  the  country,  he  would  be  obliged  to  take  part  on 
one  side  or  the  other,  or  to  withdraw  from  the  con- 
tinent ;  and  he,  as  well  as  other  reflecting  men,  were 
not  without  fears  that  the  disturbances  in  the  East- 
em  States  might  extend  throughout  the  Union.  He 
consulted  with  his  friends  m  distant  parts  of  the 
country,  and  requested  their  advice,  but  still,  as  late 
as  February,  hesitated  whether  he  should  attend  the 
Convention.  In  that  month,  he  heard  of  the  sup- 
pression of  the  rebellion  in  Massachusetts ;  but  the 
developments  which  it  had  made  of  the  state  of  so- 
ciety, the  necessity  which  it  had  revealed  for  more 
coercive  power  in  the  institutions  of  the  country,  and 
the  fear  which  it  had  excited  that  this  want  might 
lead  men's  minds  to  entertain  the  idea  of  monarchical 
government,  finally  decided  him  to  accept  the  ap- 
pouitment.  The  possibility  that  his  absence  at  such 
a  juncture  might  be  construed  into  what  he  called 
"  a  dereliction  of  republicanism,"  seems  to  have  influ- 
enced his  decision  more  than  all  other  reasons.  Con- 
gress, it  is  true,  had  now  sanctioned  the  Convention, 
and  this  had  removed  one  obstacle  which  had  weighed 

1  Washington's  Writings,  IX.  2QI. 


Ck.  Vn.]  WASHINGTON.  401 

with  him  and  -svith  others.  He  entertained  great 
doubts  as  to  the  result  of  the  experiment,  but  was 
entirely  satisfied  that  it  ought  to  be  tried.-^ 

He  left  Mount  Vernon  in  the  latter  part  of  April. 
Public  honors  attended  him  everywhere  on  his  route. 
At  Chester,  fifteen  miles  from  the  city  of  Philadel- 
phia, he  was  met  by  the  Speaker  of  the  Assembly  of 
Pennsylvania  and  several  officers  and  gentlemen  of 
distinction,  who  accompanied  him  to  Gray's  Ferry, 
where  a  military  escort  was  ui  waiting  to  receive 
him  and  conduct  him  into  the  city.  On  his  arrival, 
he  immediately  paid  a  visit  to  Dr.  Franklm,  at  that 
time  President  of  the  State  of  Pennsylvania.^ 

On  the  assembling  of  the  Convention,  Robert 
Morris,  by  the  instruction  and  in  behalf  of  the 
deputation  of  Pennsylvania,  proposed  that  General 
Washinsfton  should  be  elected  President.  John 
Putledge  of  South  Carolma  seconded  this  suggestion, 
observing  that  the  presence  of  General  Washington 
forbade  any  observations  on  the  occasion  which 
might  otherwise  be  proper.^  His  opmions,  at  the 
time  when  he  took  the  chair  of  the  Convention, 
as  to  what  was  proper  to  be  done,  and  what  was 
practicable,  can  only  be  gathered  from  his  corre- 
spondence. He  had  foraied  some  general  views  of 
the  principles  on  which  a  national  government 
should  be  framed,  but  he  had  not  proceeded  at  all 


1  Washington's  Writings,   IX.  3  Madison's  Debates,  Elliot,  V. 
236.                                                        123. 

2  Sparks's  Life  of  Washington, 
p.  435. 

VOL.   I  51 


102  THE  FEDEEAL  CONSTITUTION.  [Book  III. 

to  tlie  consideration  of  details.  The  first  and  most 
important  object  he  held  to  be,  to  establish  such  a 
constitution  as  would  secure  and  perpetuate  the 
republican  form  of  government,  by  satisfying  the 
wants  of  the  country  and  the  time,  and  thus  check- 
ing all  tendency  to  monarchical  ideas.  He  had 
come  to  the  Convention,  as  we  have  seen,  in  order 
that  the  great  experiment  of  self-government,  on 
which  this  country  had  entered  at  the  Revolution, 
might  have  a  further  trial  beyond  the  hazards  of 
the  hour.  He  knew  —  he  had  had  occasion  to 
know  —  that  the  thought  of  a  monarchy,  as  being 
necessary  to  the  safety  of  the  country,  had  been  to 
some  extent  entertained.  There  had  been  those  in 
a  former  day,  in  the  darkest  period  of  the  war,  who 
had  proposed  to  him  to  assume  a  crown,  —  men  who 
could  possibly  have  bestowed  it  upon  him,  or  have 
assisted  him  to  acquire  it,  —  but  who  met  a  rebuke 
which  the  nature  of  their  proposition  and  his  char- 
acter should  have  taught  them  to  expect.  There 
were  those  in  that  day  who  sincerely  despaired  of 
republican  liberty,  and  who  had  allowed  themselves 
to  think  that  some  of  the  royal  families  of  Europe 
might  possibly  fm^nish  a  sovereign  fitted  to  govern 
and  control  the  turbulent  elements  of  our  political 
condition.  AVashington  understood  the  genius  and 
character  of  the  people  of  this  country  so  well,  that 
he  held  it  to  be  impossible  ever  to  establish  that 
form  of  government  over  them  without  the  deepest 
social  convulsions.  It  was  the  form  of  the  govern- 
ment against  which  they  had  waged  a  seven  years' 


Ch.  Vn.]  WASHTNrGTON.  403 

war;  and  it  was  certain  that,  apart  from  all  ques- 
tions of  theoretical  fitness  or  value,  nothing  but  the 
most  frightful  civil  disorders,  menacing  the  very  ex 
istence  of  society  itself,  could  ever  bring  them  again 
under  its  sway. 

He  was  also  satisfied,  that,  whatever  particular 
system  was  to  be  adopted,  it  must  be  one  that  would 
create  a  national  sovereignty  and  give  it  the  means 
of  coercion.  What  the  nature  of  that  coercion  ought 
to  be,  he  had  not  considered ;  but  that  obedience  to 
the  ordinances  of  a  general  government  could  not  be 
expected,  unless  it  was  clothed  with  the  power  of 
enforcing  them,  all  his  experience  durmg  the  war, 
and  all  his  observation  smce,  had  fully  satisfied  him. 
He  was  convinced,  also,  that  powers  of  a  more  exten- 
sive nature,  and  which  would  comprehend  other  ob- 
jects, ought  to  be  given  to  the  general  government ; 
that  Congress  should  be  so  placed  as  to  enable  and 
compel  them  to  exert  their  constitutional  authority 
with  a  firm  and  steady  hand,  instead  of  referring 
it  back  to  the  States.  He  proposed  to  adopt  no 
temporizing  expedients,  but  to  have  the  defects  of 
the  Confederation  thoroughly  examined  and  dis- 
played, and  a  radical  cure  provided,  whether  it  were 
accepted  or  not.  A  course  of  this  kind,  he  said, 
would  stamp  Avisdom  and  dignity  on  their  proceed- 
ings, and  hold  up  a  light  which  sooner  or  later 
would  have  its  mfluence.-^ 

Persuaded  that  the  prunary  cause  of  all  the  public 

1  Washinsfton's  Writines,  IX.  250. 


404  THE  FEDERAL  CONSTITUTION.  [Book  HI 

disorders  lay  in  the  different  State  governments,  and 
in  the  tenacity  with  which  they  adhered  to  their 
State  powers,  he  saw  that  mcompatibility  in  tlie  laws 
of  different  States  and  disrespect  to  the  authority  of 
the  Union  must  continue  to  render  the  situation  of 
the  country  weak,  inefficient,  and  disgraceful.  The 
principle  Avith  which  he  entered  the  Convention, 
and  on  which  he  acted  throughout  to  the  end,  was, 
"  with  a  due  consideration  of  circumstances  and 
habits,  to  form  such  a  government  as  will  bear  the 
scrutinizmg  eye  of  criticism,  and  trust  it  to  the  good 
sense  and  patriotism  of  the  people  to  carry  it  into 
effect."  1 

The  character  of  Washington  as  a  statesman  has, 
perhaps,  been  somewhat  undervalued,  from  two 
causes ;  one  of  them  being  his  military  greatness, 
and  the  other,  the  extraordinary  balance  of  his  mmd, 
which  presented  no  brilliant  and  few  salient  qualities. 
Undoubtedly,  as  a  statesman  he  was  not  constructive, 
like  Hamilton,  nor  did  he  possess  the  same  abundant 
and  ever-ready  resources.  He  was  emmently  cau- 
tious, but  he  was  also  eminently  sagacious.  He  had 
had  a  wide  field  of  observation  during  the  war,  the 
theatre  of  which,  commencing  in  New  England,  had 
extended  through  the  Middle  and  into  the  Southern 
States.  He  had,  of  course,  been  brought  in  contact 
with  the  men  and  the  institutions  of  all  the  States, 
and  had  been  concerned  in  their  conflicts  with  the 
federal  authority,  to  a  greater  extent  than  any  other 

1  Washington's  Writings,  IX.  258. 


t^H-  VII.]  WASHIN^GTON.  405 

public  man  of  the  time.  This  experience  had  not 
prepared  hun— as  the  character  of  his  mind  had  not 
prepared  him — to  suggest  plans  or  frame  mstitutions 
fitted  to  remedy  the  evils  he  had  observed,  and  to 
apply  the  principles  which  he  had  discovered.  But 
it  had  revealed  to  hun  the  dangers  and  difficulties 
of  our  situation,  and  had  made  him  a  national  states- 
man, as  incapable  of  confinmg  his  pohtics  to  the  nar- 
row scale  of  local  interests  and  attachments,  as  he 
had  been  of  confining  his  exertions  to  the  object  of 
acliievuig  the  liberties  of  a  smgle  state. 

He  would  have  been  fitly  placed  in  the  chair  of 
any  deliberative  assembly  into  which  he  might  have 
been  called  at  any  period  of  his  life ;  but  it  was  pre- 
eminently suitable  that  he  should  occupy  that  of  the 
Convention  for  foraiing  the  Constitution.  He  had  no 
talent  for  debate,  and  upon  the  floor  of  this  body  he 
would  have  exerted  less  influence,  and  have  been  far 
less  the  central  object  towards  which  the  opmions 
and  views  of  the  members  were  directed,  than  he  was 
m  the  high  and  becoming  position  to  which  he  was 
now  called. 


CHAPTER  YIII. 

Hamilton. 

Next  to  the  august  name  of  the  President  should 
be  mentioned  that  great  man  who,  as  a  statesman, 
towered  above  all  his  compeers,  even  in  that  assem- 
bly of  great  men,  —  Alexander  Hamilton. 

This  eminent  person  is  probably  less  well  known 
to  the  nation  at  the  present  day,  than  most  of  the 
leading  statesmen  of  the  Revolution.  There  are 
causes  for  this  in  his  history.  He  never  attained  to 
that  high  office  which  has  conferred  celebrity  on  in- 
ferior men.  The  political  party  of  which  he  was 
one  of  the  founders  and  one  of  the  chief  leaders 
became  unpopular  with  the  great  body  of  his  coim- 
trymen  before  it  was  extinct.  His  death,  too,  at  the 
early  age  of  forty-seven,  while  it  did  not  leave  an 
unfinished  character,  left  an  unfinished  career,  for 
the  contemplation  of  posterity.  In  this  respect,  his 
fate  was  unlike  that  of  nearly  all  his  most  distin- 
guished contemporaries.  Washington,  Adams,  Jef- 
ferson, Madison,  Jay,  and  in  fact  almost  all  the 
prominent  statesmen  of  the  Revolution,  died  in  old 
age  or  in  advanced  life,  and  after  the  circle  of  their 
public  honors  and  usefulness  had  been  completed 


Ch.  Vni.]  HAMILTON.  407 

Hamilton  was  cut  off  at  a  period  of  life  when  he 
may  be  said  to  have  had  above  a  third  of  its  best 
activity  yet  before  him:  and  this  is  doubtless  one 
cause  why  so  little  is  popularly  known,  by  the  pres- 
ent generation,  of  him  who  was  by  far  the  greatest 
statesman  of  the  Eevolutionary  age. 

It  is  known,  indeed,  traditionally,  what  a  thrill  of 
horror  —  what  a  sharp,  terrible  pang  —  ran  tlirough 
the  nation,  proving  the  comprehension  by  the  entire 
people  of  what  was  lost,  when  Aaron  Burr  took  from 
his  countiy  and  the  world  that  important  life.     In 
the  most  distant  extremities  of  the  Union,  men  felt 
that  one  of  the  first  intellects  of  the  age  had  been 
extinguished.     From  the  utmost  activity  and  public 
consideration,  in  the  fulness  of  his  strength  and  use- 
fulness, the  bullet  of  a  duellist  had  taken  the  first 
statesman  ui  America  ;  —  a  man  who,  while  he  had 
not  been  without  errors,  and  while  his  life  had  not 
been  without  mistakes,  had  served  his  country,  from 
his  boyhood  to  that  hour  of  her  bitter  bereavement, 
with  an  elevation  of  pui-pose  and  a  force  of  intellect 
never  exceeded  in  her  history,  and  which  had  caused 
Washington  to  lean  upon  him  and  to  trust  hun,  as 
he  trusted  and  leaned  upon  no  other  man,  fi-om  first 
to  last.     The  death  of  such  a  man,  under  such  cir- 
cumstances, cast  a  deep  gloom  over  the  face  of  so- 
ciety; and  Hamilton  was  mourned  by  his  contempo- 
raries with  a  sorrow  founded  on  a  just  appreciation 
of  his  greatness,  and  of  what  they  owed  to  his  intel- 
lect and  character.    But  by  the  generations  that  have 
succeeded  he  has  been  less  intimately  known  than 


408  THE  FEDERAL  CONSTITUTION.  [Book  III. 

many   of  his    compatriots,  who   lived  longer,   and 
reached  stations  which  he  never  occupied. 

He  was  born  in  the  island  of  Nevis,  in  the 
year  1757;  his  mother  being  a  native  of  that  isl- 
and, and  his  father  being  a  Scotchman.  At  the 
age  of  fifteen,  after  havmg  been  for  three  years  in 
the  counting-house  of  a  merchant  at  Santa  Cruz,  he 
was  sent  to  New  York  to  complete  his  education, 
and  was  entered  as  a  private  student  in  King's  (now 
Columbia)  College.  At  the  age  of  seventeen,  his 
political  life  was  already  begun;  for  at  that  age, 
and  while  still  at  college,  he  wrote  and  published 
a  series  of  essays  on  the  Rights  of  the  Colonies, 
which  attracted  the  attention  of  the  whole  country. 
These  essays  appeared  in  1774,  in  answer  to  cer- 
tain pamphlets  on  the  Tory  side  of  the  contro- 
versy; and  in  them  Hamilton  reviewed  and  vindi- 
cated the  whole  of  the  proceedings  of  the  first  Con- 
tinental Congress.  There  are  displayed  in  these 
papers  a  power  of  reasoning  and  sarcasm,  a  knowl- 
edge of  the  principles  of  government  and  of  the 
English  Constitution,  and  a  grasp  of  the  merits  of 
the  whole  controversy,  that  would  have  done  honor 
to  any  man  at  any  age,  and  in  a  youth  of  seventeen 
are  wonderful.  To  say  that  they  evince  precocity  of 
intellect,  gives  no  idea  of  their  main  characteristics. 
They  show  great  maturity;  —  a  more  remarkable 
maturity  than  has  ever  been  exhibited  by  any  other 
person,  at  so  early  an  age,  in  the  same  department 
of  thought.  They  produced,  too,  a  great  effect. 
Their  influence  in  bringing  the  public  mind  to  the 


Ch   Vm.]  HAMILTON.  409 

point  of  resistance  to  the  mother  countiy,  was  impor- 
tant and  extensive. 

Before  he  was  nineteen  years  old,  Hamilton  en- 
tered the  army  as  a  captain  of  artillery;  and  when 
only  twenty,  in  1777,  he  was  selected  by  Washing- 
ton to  be  one  of  his  aides-de-camp,  with .  the  rank  of 
lieutenant-colonel.  In  this  capacity  he  served  until 
1782,  when  he  was  elected  a  member  of  Congress 
from  the  State  of  New  York,  and  took  his  seat.  In 
1786,  he  was  chosen  a  member  of  the  legislature  of 
New  York.  In  1787,  he  was  appointed  as  a  dele- 
gate to  the  Convention  which  framed  the  Constitu- 
tion. In  the  following  year,  when  only  thirty  years 
old,  he  pubhshed,  with  INIadison  and  Jay,  the  cele- 
brated essays  called  "  The  Federahst,"  m  favor  of  the 
form  of  government  proposed  by  the  Convention. 
In  1788,  he  became  a  member  of  the  State  Conven- 
tion of  New  York,  called  to  ratify  the  Constitution, 
and  it  was  chiefly  through  his  influence  that  it  was 
adopted  m  that  State.  In  1789,  he  took  office  in 
Washington's  administration,  as  Secretary  of  the 
Treasury.  In  1795,  he  retired  to  the  practice  of  the 
law  in  the  city  of  New  York.  In  1798,  at  Wash- 
mgton's  absolute  demand,  he  was  appomted  second 
in  command  of  the  provisional  amiy,  raised  under 
the  elder  Adams's  administration,  to  repel  an  appre- 
hended invasion  of  the  French.  •  On  the  death  of 
Washington,  in  1799,  he  succeeded  to  the  chief 
command.  "S^Tien  the  army  was  disbanded,  he 
agam  returned  to  the  bar,  and  practised  Avith  great 
reputation  until  the  year  1804,  when  his  life  was 

VOL    I.  52 


410  THE  FEDERAL  CONSTITUTION.  [Book  III. 

terminated  in  a  duel  witli  Colonel  Burr,  concerning 
which  the  sole  blame  that  has  ever  been  imputed  to 
Hamilton  is,  that  he  felt  constrained  to  accept  the 
challenge. 

His  great  characteristic  was  his  profound  insight 
into  the  principles  of  government.  The  sagacity 
with  which  he  comprehended  all  systems,  and  the 
thorough  knowledge  he  possessed  of  the  workmg 
of  all  the  freer  institutions  of  ancient  and  modern 
times,  united  with  a  smgular  capacity  to  make  the 
^  experience  of  the  past  bear  on  the  actual  state  of 
society,  rendered  him  one  of  the  most  useful  states- 
men that  America  has  known.  Whatever  in  the 
science  of  government  had  already  been  ascertained ; 
whatever  the  civil  condition  of  mankind  in  any  age 
had  made  practicable  or  proved  abortive ;  whatever 
experience  had  demonstrated ;  whatever  the  passions, 
the  interests,  or  the  wants  of  men  had  made  inevita- 
ble, —  he  seemed  to  know  intuitively.  But  he  was 
no  theorist.  His  powers  were  all  eminently  prac- 
tical. He  detected  the  vice  of  a  theory  instantly, 
and  shattered  it  with  a  single  blow. 

His  knowledge,  too,  of  the  existmg  state  of  his 
own  and  of  other  countries  was  not  less  remarkable 
than  his  knowledge  of  the  past.  He  understood 
America  as  thoroughly  as  the  ^visest  of  his  contem- 
poraries, and  he  comprehended  Europe  more  com- 
pletely than  any  other  man  of  that  age  upon  this 
continent.-^ 

1  While  these  shfeets  are  pass-      writes  to  me  as  follows :    "  One 
ing  through  the  press,  Mr.  Ticknor      day  in  January,  1819,  talking  with 


Ch.  vm.] 


HAMILTON.  411 


To  these  characteristics  he  added  a  clear  logical 
power  in  statement,  a  vigorous  reasoning,  a  perfect 
frankness  and  moral  courage,  and  a  lofty  disdain  of 
all  the  arts  of  a  demagogue.  His  eloquence  was 
distinguished  for  correctness  of  language  and  dis- 
tinctness of  utterance,  as  weU  as  for  grace  and 
dignity. 

In  theory,  he  leaned  decidedly  to  the  constitution 
of  England,  as  the  best  form  of  ci\il  polity  for  the 
attainment  of  the  great  objects  of  government.  But 
he  was  not,  on  that  account,  less  a  lover  of  liberty 
than  those  who  favored  more  popular  and  democratic 
institutions.  His  writings  will  be  searched  in  vain 
for  any  disregard  of  the  natural  rights  of  mankind, 
or  any  msensibihty  to  the  blessings  of  freedom.  It 
was  because  he  believed  that  those  blessings  can  be 
best  secured  by  governments  in  which  a  change  of 
rulers  is  not  of  frequent  occurrence,  that  he  had  so 
high  an  estimate  of  the  English  Constitution.  At 
the  period  of  the  Convention,  he  held  that  the  chief 
want  of  this  country  was  a  government  into  which 
the  element  of  a  permanent  tenure  of  office  could  be 
largely  infused  ;  and  he  read  in  the  Convention  —  as 

Prince  Talleyrand,  in  Paris,  about  American,  I  was  in  some  sort  a 
his  -visit  to  America,  he  expressed  party  concerned  by  patriotism  in 
the  highest  admiration  of  Mr.  Ham-  the  compliment,  I  answered  with 
ilton,  saying,  among  other  things,  a  little  reserve,  that  the  great  mil- 
that  he  had  known  nearly  all  the  itary  commanders  and  the  great 
marked  men  of  his  time,  but  that  statesmen  of  Europe  had  dealt  with 
he  had  never  known  one,  on  the  larger  masses  and  wider  interests 
whole,  equal  to  him.  I  was  much  than  he  had.  '  Mais,  Monsieur,' 
surprised  and  gratified  with  the  re-  the  Prince  instantly  replied, '  Ham- 
mark  ;  but  still,  feeling  that,  as  an  ilton  avoit  dcvine  TEurope.'  " 


412  THE  FEDERAL  CONSTITUTION.  [Book  III. 

an  illustration  of  his  views,  but  without  pressing  it  — 
a  plan  by  which  the  Executive  and  the  Senate  could 
hold  their  offices  during  good  behavior.  But  the 
idea,  which  has  sometimes  been  promulgated,  that 
he  desired  the  establishment  of  a  monarchical  gov- 
ernment in  this  country,  is  without  foundation.  At 
no  period  of  his  life  did  he  regard  that  experiment 
as  either  practicable  or  desirable. 

Hamilton's  relation  to  the  Constitution  is  pecuhar. 
He  had  less  dhect  agency  in  framing  its  chief  pro- 
visions than  many  of  the  other  principal  persons  who 
sat  in  the  Convention ;  and  some  of  its  provisions 
were  not  wholly  acceptable  to  him  when  framed. 
But  the  history,  which  has  been  detailed  in  the  pre- 
vious chapters  of  this  work,  of  the  progress  of  federal 
ideas,  and  of  the  efforts  to  introduce  and  establish 
principles  tending  to  consolidate  the  Union,  has  been 
largely  occupied  with  the  recital  of  his  opinions, 
exertions,  and  prevalent  influence.  Beginning  with 
the  year  1780,  when  he  was  only  three-and-twenty 
years  of  age,  and  when  he  sketched  the  outline  of  a 
national  government  strongly  resembling  the  one 
which  the  Constitution  long  afterwards  established  • 
passing  through  the  term  of  his  service  in  Congress, 
when  his  admirable  expositions  of  the  revenue  sys- 
tem, the  commercial  power,  and  the  ratio  of  contri- 
bution, may  justly  be  said  to  have  saved  the  Union 
from  dissolution ;  and  coming  do"\vn  to  the  time 
when  he  did  so  much  to  bring  about,  first,  the  meet- 
ing at  Annapolis,  and  then  the  general  and  final 
Convention  of  all   the   States ;  —  the  whole  period 


Ch.  Vm.]  HAMILTON.  413 

is  marked  by  his  "wisdom  and  filled  with  his  power. 
He  did  more  than  any  other  pubhc  man  of  the  tune 
to  lessen  the  force  of  State  attachments,  to  create  a 
national  feeling,  and  to  lead  the  public  muid  to  a 
comprehension  of  the  necessity  for  an  efficient  na- 
tional sovereignty. 

Indeed,  he  was  the  first  to  perceive  and  to  develop 
the  idea  of  a  real  union  of  the  people  of  the  United 
States.  To  him,  more  than  to  any  one  else,  is  to  be 
attributed  the  conviction  that  the  people  of  the  dif- 
ferent States  were  competent  to  establish  a  general 
government  by  their  o^vn  direct  action ;  and  that  this 
mode  of  proceeding  ought  to  be  considered  within 
the  contemplation  of  the  State  legislatures,  when 
they  appointed  delegates  to  a  convention  for  the 
revision  and  amendment  of  the  existing  system.^ 

The  age  in  which  he  lived,  and  the  very  extraor- 
dinary early  maturity  of  his  character,  naturally  re- 
mmd  us  of  that  remarkable  person  who  was  two' 
years  his  junior,  and  who  became  prime-mmister 
of  England  at  the  age  of  twenty-four.  The  young- 
er Pitt  entered  public  life  with  almost  every  possi- 
ble advantage.  Inheritmg  "  a  great  and  celebrated 
name,"^  educated  expressly  for  the  career  of  a  states- 
man, and  introduced  into  the  House  of  Commons  at 
a  moment  when  power  was  just  ready  to  drop  into 
the  hands  of  any  man  capable  of  wielduig  it,  he  had 
only  to  prove  himself  a  brilliant  and  powerful  de- 
bater, m  order  to  become  the  ruler  of  an  empire, 

^  See  his  first  speech  in  the  Con-  2  Burke,  speaking  of  Lord  Chat- 

vention ,  as  reported  by  Mr .  Madison .      ham . 


414  THE  FEDEEAL  CONSTITUTION.  [Book  III. 

whose  constitution  had  been  settled  for  ages,  and 
was  necessarily  administered  by  the  successful  lead- 
ers of  regular  parties  in  its  legislative  body.  That 
he  was  a  most  eminent  parliamentary  orator,  a  con- 
summate tactician  and  leader  of  party,  a  minister  of 
singular  energy,  and  a  statesman  of  a  very  high  order 
of  mind  and  character,  at  an  age  when  most  men 
are  scarcely  beginning  to  give  proofs  of  what  they 
may  become,  —  all  this  History  has  deliberately  and 
finally  recorded.  What  place  it  may  assign  to  him 
among  the  statesmen  by  whose  lives  and  actions 
England  and  the  world  have  been  materially  and  per- 
manently benefited  is  not  yet  settled,  and  it  is  not  to 
the  present  purpose  to  consider. 

The  theatre  in  which  Hamilton  appeared,  lived, 
and  acted,  was  one  of  a  character  so  totally  different, 
that  the  comparison  necessarily  ends  with  the  con- 
trast which  it  immediately  suggests.  Like  Pitt,  in- 
deed, he  seems  to  have  been  born  a  statesman,  and 
to  have  had  no  such  youth  as  ordinarily  precedes  the 
manhood  of  the  mind.  But,  in  the  American  colo- 
nies, no  political  system  of  things  existed  that  was 
fitted  to  train  hun  for  a  career  of  usefulness  and 
honor ;  and  yet,  when  the  years  of  his  boyhood  were 
hardly  ended,  he  sprang  forth  into  the  troubled  af- 
fau's  of  the  time,  with  the  full  stature  of  a  matured 
and  well-furnished  statesman.  He,  in  truth,  showed 
himself  to  be  already  the  man  that  was  wanted. 
Every  thing  was  in  an  unsettled  and  anxious  state ; 
—  a  state  of  change  and  transition.  There  was  no 
regular,  efficient  government.     It  was  all  but  a  state 


Ch.  Vm.]  HAMILTON.  415 

of  civil  war,  and  the  more  clear-sighted  saw  that  this 
great  disaster  was  coming.  He  was  compelled,  there- 
fore, to  mark  out  for  himself,  step  by  step,  beginning 
in  177-1,  a  system  of  political  principles  which  shoidd 
serve,  not  to  administer  existing  institutions  with 
wisdom  and  beneficence,  but  to  create  institutions 
able  to  unite  a  people  divided  into  thirteen  indepen- 
dent sovereignties ;  to  give  them  the  attitude  and 
capacity  of  an  mdependent  nation ;  and  then  to 
carry  them  on,  "vvith  constantly  increasing  prosperity 
and  power,  to  their  just  place  in  the  affairs  of  the 
world.  It  was  a  great  work,  but  Mr.  Hamilton 
was  equal  to  it.  He  was  by  nature,  by  careful 
study,  and  by  still  more  careful,  anxious,  and  earnest 
thought,  eminently  fitted  to  detect  and  develop  those 
resources  of  power  and  progress,  which,  in  the  dark 
condition  of  society  that  attends  and  follows  an  ex 
haustmg  period  of  revolution,  lie  hidden,  like  gener- 
ous seeds,  until  some  strong  hand  disencumbers  them 
of  the  soil  with  which  they  had  been  oppressed,  and 
gives  them  opportunity  to  germinate  and  bear  golden 
fruit.  At  the  age  of  three-and-tw^nty  he  had  already 
formed  well-defiiied,  profound,  and  comprehensive 
opinions  on  the  situation  and  wants  of  these  States. 
He  had  clearly  discerned  the  practicability  of  form- 
ing a  confederated  government,  and  adapting  it  to 
their  peculiar  condition,  resources,  and  exigencies. 
He  had  wrought  out  for  himself  a  j)olitical  system, 
far  in  advance  of  the  conceptions  of  his  contempo- 
raries, and  one  which,  in  the  hands  of  those  who 
most  opposed  him  in  life,  became,  when  he  was  laid 


416  THE  FEDEEAL  CONSTITUTION.  [Book  HI.- 

ill  a  premature  grave,  the  basis  on  which  this  gov- 
ernment was  consolidated ;  on  which,  to  the  pres- 
ent day, 'it  has  been  administered;  and  on  which 
alone  it  can  safely  rest  in  that  future,  which  seems  so 
to  stretch  out  its  unending  glories  before  us. 

Mr.  Hamilton,  therefore,  I  conceive,  proved  him- 
self early  to  be  a  statesman  of  greater  talent  and 
power  than  the  celebrated  English  mmister  whose 
youthful  success  was  in  the  eyes  of  the  world  so 
much  more  brilliant,  and  whose  early  death  was  no 
less  disheartening ;  for  none  can  doubt,  that  to  build 
up  a  fi:ee  and  firm  state  out  of  a  condition  of  political 
chaos,  and  to  give  it  a  government  capable  of  devel 
oping  the  resources  of  its  soil  and  people,  and  ot 
insurmg  to  it  prosperity,  power,  and  permanence,  is 
a  greater  work  than  to  administer  with  energy  and 
success  —  even  in  periods  of  severe  trial  —  the  con- 
stitution of  an  empire  whose  principles  and  modes  of 
action  have  been  settled  for  centuries. 

Hamilton  was  one  of  those  statesmen  who  trust 
to  the  efficacy  of  the  press  for  the  advancement  and 
inculcation  of  correct  prmciples  of  public  policy,  and 
who  desire  to  accomplish  important  results  mainly 
through  the  action  of  an  enlightened  public  opinion. 
That  he  had  faith  in  the  intelHgence  and  honesty  of 
his  countrymen,  is  proved  by  the  nmnerous  writings 
which  he  constantly  addressed  to  their  reason  and 
good  sense,  in  the  shape  of  essays  or  letters,  from  the 
beginning  to  the  end  of  his  career,  upon  subjects  on 
which  it  was  important  that  they  should  act  with 
wisdom  and  principle. 


Ch.  Vm.]  HAMILTON.  417 

His  own  opinions,  although  held  -with  great  firm- 
ness, were  also  held  in  subordination  to.  what  was 
practicable.  It  was  the  rare  felicity  of  liis  tempera- 
ment, to  be  able  to  accept  a  less  good  than  his  prin- 
ciples might  have  led  him  to  insist  upon,  and  to  labor 
for  it,  when  nothing  better  could  be  obtamed,  with 
as  much  patriotic  energy  and  zeal  as  if  it  had  been 
the  best  result  of  his  own  views.  The  Constitution 
itself  remains,  in  this  particular,  a  monument  of  the 
disinterestedness  of  his  character.  He  thought  it 
had  great  defects.  But  he  accepted  it,  as  the  best 
government  that  the  wisdom  of  the  Convention  could 
frame,  and  the  best  that  the  nation  would  adopt. 
In  this  spirit,  as  soon  as  it  was  promulgated  for  the 
acceptance  of  the  country,  he  came  forward  and 
placed  himself  in  the  foremost  rank  of  its  advocates, 
making  himself,  for  all  future  time,  one  of  the  chief 
of  its  authoritative  expounders.  He  was  very  ably 
assisted  in  the  Federalist  by  Madison  and  Jay ;  but 
it  was  from  liim  that  the  Federalist  derived  the 
weight  and  the  power  which  commanded  the  carefid 
attention  of  the  country,  and  carried  conviction  to 
the  great  body  of  intelligent  men  in  all  parts  of 
the  Union.  The  extraordinary  forecast  wdtli  w^hich 
its  luminous  discussions  anticipated  the  operation 
of  the  new  institutions,  and  its  profoilnd  elucidation 
of  their  principles,  gave  birth  to  American  constitu- 
tional law,  which  was  thus  placed  at  once  above  the 
field  of  arbitrary  constructions  and  in  the  domain  of 
legal  truth.  They  made  it  a  science;  and  so  long 
as  the  Constitution  shall   exist,  they  will  continue 

VOL.  I.  53 


418 


THE   FEDERAL   CONSTITUTION. 


[Book  III. 


to  be  resorted  to  as  the  most  important  source  of 
contemporaneous  interpretation  which  the  annals  of 
the  country  afford.^ 

In  the  two  paramount  characters  of  statesman  and 


^  The  current  editions  of  the 
I'ederalist  are  taken  from  an  edi- 
tion published  at  Washington  in 
181S,  by  Jacob  Gideon,  in  which 
the  numbers  written  by  Mr.  Madi- 
son purport  to  have  been  corrected 
by  himself.  There  had  been  three 
editions  previous  to  this.  The  first 
edition  was  published  in  1788,  in 
two  small  volumes,  by  J.  &  A. 
M'Lean,  41  Hanover  Square,  New 
York,  under  the  following  title  : 
"  The  Federalist  :  a  Collection  of 
Essays  written  in  Favor  of  the  New 
Constitution,  as  agreed  upon  by  the 
Federal  Convention,  September  17, 
1787."  The  first  volume  was  is- 
sued before  the  last  of  the  essays 
were  written,  and  the  second  fol- 
lowed it,  as  soon  as  the  series  was 
completed.  The  authentic  text  of 
the  work  is  to  be  found  in  this 
edition ;  two  of  the  authors  were 
in  the  city  of  New  York  at  the 
time  it  was  printed,  and  probably 
superintended  it.  It  was  reissued 
from  the  same  type,  in  1789,  by 
John  Tiebout,  358  Pearl  Street, 
New  York.  A  second  edition  was 
published  in  1802,  «,t  New  York, 
in  two  volumes,  containing  also 
"  Pacificus  on  the  Proclamation  of 
Neutrality,  and  the  Constitution, 
with  its  Amendments."  A  third 
edition  was  published  in  1810,  by 
Williams  &  Whiting,  New  York. 
I  have  seen  copies  of  the  first  and 
second   editions    only,   in    the   li- 


brary of  Peter  Force,  Esq.,  of 
Washington,  editor  of  the  "  Amer- 
ican Archives."  There  are  some 
discrepancies  between  the  text  of 
the  first  edition  and  that  of  1818, 
from  which  the  current  editions  are 
taken.  By  whom  or  on  what  au- 
thority the  alterations  were  made, 
I  have  not  been  able  to  ascertain, 
nor  have  I  learned  when,  or  why, 
or  how  far  Mr.  Madison  may  have 
corrected  or  altered  the  papers  which 
he  wrote.  Such  of  the  changes  as 
I  have  examined  do  not  materially 
affect  the  sense ;  but  it  is  very  de- 
sirable that  the  true  text  of  the 
Federalist  should  be  reproduced. 
That  text  exists  in  the  first  edi- 
tion, which  was  issued  while  the 
Constitution  was  before  the  peo- 
ple of  the  United  States  for  their 
ratification ;  and  as  the  Federalist 
was  an  argument  addressed  to  the 
people  in  favor  of  the  adoption  of 
the  Constitution,  the  exact  text  of 
that  argument,  as  it  was  read  and 
acted  upon,  ought  to  be  restored, 
without  regard  to  the  reasons  which 
may  have  led  any  of  the  writers,  or 
any  one  else,  to  alter  it.  I  know 
of  no  evidence  that  Colonel  Hamil- 
ton ever  made  or  sanctioned  the 
alteration  of  a  word.  After  the 
text  of  the  Constitution  itself,  there 
is  scarcely  any  thing  the  preserva- 
tion of  which  is  more  important 
than  the  text  of  the  Fc'crylisl  aa 
it  was  first  published. 


Ch.  Vm.J  HAMILTON.  419 

jurist,  in  the  comprehensive  nature  of  his  patriotism, 
in  his  freedom  from  sectional  prejudices,  in  his  ser- 
vices to  the  Union,  and  in  the  kind  and  magnitude 
of  his  mtellect,  posterity  will  recognize  a  resemblance 
to  him  whom  America  still  mourns  with  the  fresh- 
ness of  a  recent  grief,  and  who  has  been  to  the  Con- 
stitution, m  the  age  that  has  succeeded,  what  Hamil- 
ton was  in  the  age  that  witnessed  its  formation  and 
establishment.  Without  the  one  of  these  illustrious 
men,  the  Constitution  probably  would  never  have 
existed;  "without  the  other,  it  might  have  become 
a  mere  record  of  past  institutions,  whose  history  had 
been  glorious  until  faction  and  civil  discord  had 
turned  it  into  a  record  of  mournful  recollections. 

The  following  sentences,  written  by  Hamilton  soon 
after  the  adjournment  of  the  Convention,  contaui  a 
clew  to  all  his  conduct  in  support  of  the  plan  of  gov- 
ernment which  that  body  recommended :  —  "It  may 
be  in  me  a  defect  of  political  fortitude,  but  I  ac- 
knowledge that  I  cannot  feel  an  equal  tranquillity 
with  those  who  affect  to  treat  the  dangers  of  a  longer 
continuance  in  our  present  situation  as  imaginary. 
A  nation  without  a  national  government  is  an  awful 
spectacle.  The  establishment  of  a  constitution,  in  a 
time  of  profound  peace,  by  the  voluntary  consent  of 
a  whole  people,  is  a  prodigy,  to  the  completion  of 
which  I  look  forward  with  trembling  anxiety." 


CHAPTEH  IX. 

Madison. 

From  Hamilton  we  naturally  turn  to  his  asso- 
ciate in  the  Federalist,  —  James  Madison,  afterwards 
fourth  President  of  the  United  States,  —  whose  faith- 
ful and  laborious  record  has  preserved  to  us  the  de- 
bates of  the  Convention. 

Mr.  Madison  was  thirty-six  years  old  when  he 
entered  that  assembly.  His  previous  life  had  fitted 
him  to  play  a  conspicuous  and  important  part  in  its 
proceedings.  He  was  born  in  1751,  of  a  good  fami- 
ily,  in  Orange  County,  Virginia,  and  was  educated  at 
Princeton  College  in  New  Jersey,  where  he  took  the 
degree  of  Bachelor  of  Arts  in  1772.  He  returned  to 
Virginia  in  the  spring  of  1773,  and  commenced  the 
usual  studies  preparatory  to  an  admission  to  the  bar ; 
but  the  disputes  between  the  Colonies  and  the  mother 
country  soon  drew  him  into  public  life.  In  1776, 
he  became  a  member  of  the  State  Convention  which 
formed  the  first  Constitution  of  Virginia.  He  was 
afterwards  a  member  of  the  legislature  and  of  the 
Council  of  the  State,  until  he  was  appointed  one  of 


Ch.  IX.]  MADISON.  421 

its  delegates  in  Congress,  where  he  took  his  seat  in 
March,  1780.^ 

From  this  time  to  the  assemblmg  of  the  Federal 
Convention  in  1787,  his  services  to  the  Union  were 
of  the  most  important  character.     He  entered  Con- 
gress without  a  national  reputation,  but  with   na- 
tional \dews.     Indeed,  it  may  be  said  of  hhn,  that  he 
came  fi-om  his  native  Commonwealth,  —  "  mother  of 
great  men,"  —  grown  to  the   full  proportions  of  a 
continental   statesman.      At   the  moment  when   he 
appeared  upon  the  larger  theatre  of  the  national  m- 
terests,  the  Articles  of  Confederation  had  not  been 
iinaUy  ratified  by  aU  the  States.     Maryland  had  in- 
sisted, as  a  necessary  condition  of  her  accession  to 
the  new  Confederacy,  that  the  great   States   should 
surrender  to  the  Union  their  immense  claims  to  the 
unoccupied   territories  of  the  West;    Virgmia  had 
remonstrated  agamst  this  demand;  and  the  whole 
scheme  of  the  Confederation   had  thus   been   long 
encountered   by  an   apparently  insunnoimtable   ob- 
stacle.2    The  generous  example  of  New  York,  whose 
Western  claims  were  ceded  to  the  United  States  in 
the  month  preceding  Mr.  Madison's  entry  into  Con- 
gress, had  furnished  to  the  advocates  of  the  Union 
the  means  for  a  powerful  a^Dpeal  to  both  sides  of 
this  critical  and  delicate  controversy ;  but  it  required 
great  tact,  discretion,  and  address  to  make  that  ap- 
peal effectual,  by  inducing  Maryland  to  trust  to  the 

1  Article    "  Madison  "    in    the      Tucker  of  the  University  of  Vir- 
Penny  Encylopaedia,   written    for      ginia. 
»hat  work    by  Professor    George  2  Ante,  pp.  131  - 141. 


422  THE  FEDERAL   CONSTITUTION.  [Book  IH. 

influence  of  this  example  upon  Virginia,  and  by 
inducing  Virginia  to  make  a  cession  that  would  be 
satisfactory  to  Maryland.  In  this  high  effort  of 
statesmanship  —  a  domestic  diplomacy  full  of  diffi- 
culties —  Mr.  Madison  took  part.  He  did  not  pre- 
pare the  very  skilful  report  which,  while  it  aimed  to 
produce  cessions  of  their  territorial  claims  by  the 
larger  States,  appealed  to  Maryland  to  anticipate  the 
result ;  -^  but  the  vast  concession  by  which  Virginia 
yielded  the  Northwestern  Territory  to  the  Union  was 
afterAvards  brought  about  mainly  by  his  exertions. 

In  1782,  he  united  with  Hamilton  in  the  cele- 
brated report  prepared  by  the  latter  upon  the  refusal 
of  the  State  of  Rhode  Island  to  comply  with  the  rec 
ommendations  of  Congress  for  a  duty  on  imports.^ 

In  1783,  he  was  named  first  upon  a  committee 
with  Ellsworth  and  Hamilton,  to  prepare  an  Address 
to  the  States,  urging  the  adoption  of  the  revenue  sys- 
tem which  has  been  described  in  a  previous  chapter, 
and  the  Address  was  written  by  him.^  The  great 
ability  and  high  tone  of  tliis  paper  gave  it  a  striking 
effect.  The  object  of  tliis  plan  of  revenue  was,  as 
we  have  seen,  to  fund  the  national  debts,  and  to 
make  a  sufficient  provision  for  their  discharge.  I 
have  already  assigned  to  it  the  merit  of  having  pre- 
served the  Union  from  the  premature  decay  that  had 
begun  to  destroy  its  vitality ;  ^  and  it  may  here  be 
added,  that  the  statesman  whose  pen  could  produce 

1  It  was  drawn  by  James  Duane  ^  Ante,  pp.  177  -  179. 

of  New  York.  4  Ante,  pp.  176,  186,  188. 

a  Ante,  pp.  174,  206-208. 


Ch.  IX.j  MADISON.  423 

the  comprehensive  and  powerful  appeal  by  which  it 
was  pressed  upon  the  States,  was  certain  to  become 
one  of  the  chief  founders  of  the  Constitution  of 
which  the  plan  itself  was  the  forerunner.  It  set- 
tled the  fact,  that  a  national  unity  in  dealmg  with 
the  debts  of  the  Revolution  was  "  necessary  to  ren- 
der its  fruits  a  full  reward  for  the  blood,  the  toils, 
the  cares,  and  the  calamities  which  had  purchased 
them." 

Such  were  Mr.  Madison's  most  important  services 
in  the  Congress  of  the  Confederation ;  but  they  are 
of  course  not  the  whole.  A  member  so  able  and  of 
such  broad  and  national  views  must  have  had  a 
large  agency  in  every  important  transaction ;  and 
accordingly  the  Journals,  during  the  whole  period 
of  his  service,  bear  ample  testimony  to  his  activity, 
his  influence,  and  his  zeal. 

At  the  close  of  the  war,  he  retired  to  Vii-gmia, 
and  during  the  three  folio  vvmg  years  was  a  member 
of  the  legislature,  still  occupied,  however,  with  the 
interests  of  the  Union.  His  attention  was  specially 
directed  to  the  subject  of  enlarging  the  powers  of 
Congress  over  the  foreign  trade  of  the  country.  It 
is  a  striking  fact,  and  a  proof  of  the  comprehensive 
character  of  Mr.  Madison's  statesmanship,  that  Vir- 
ginia, a  State  not  largely  commercial,  should  have 
taken  so  prominent  a  part  in  the  efl'orts  to  give  the 
control  of  commerce  to  the  general  government ;  — 
an  object  which  has  justly  been  regarded  as  the  cor- 
ner-stone of  the  Constitution.  It  arose  partly  from 
the   accident   of  her   geographical   position,   which 


424  THE  FEDERAL  CONSTITUTION.  [Book  IIL 

made  it  necessary  for  her  to  aim  at  something  like 
miiformity  of  regulation  with  the  other  States  which 
bordered  upon  her  contiguous  waters ;  but  it  is  also 
to  be  attributed  to  the  enlightened  liberality  and 
forecast  of  her  great  men,  who  saw  in  the  imme- 
diate necessities  of  their  own  State  the  occasion  for 
a  measure  of  general  advantage  to  the  country. 

Mr.  Madison's  first  effort  was,  to  procure  a  decla- 
ration by  the  legislature  of  Virginia  of  the  necessity 
for  a  uniform  regulation  of  the  commerce  of  the 
States  by  the  federal  authority.  For  this  purpose, 
he  introduced  into  the  legislature  a  series  of  propo- 
sitions, mtended  to  instruct  the  delegates  of  the  State 
in  Congress  to  propose  a  recommendation  to  the 
States  to  confer  upon  Congress  power  to  regulate 
their  trade  and  to  collect  a  revenue  from  such  regu- 
lation. This  measure,  as  we  have  seen,  encountered 
the  opposition  of  those  who  preferred  a  temporary  to 
a  perpetual  and  irrevocable  grant  of  such  power ; 
and  the  propositions  were  so  much  changed  in  the 
Committee  of  the  Whole,  that  they  were  no  longer 
acceptable  to  their  original  friends.  The  steps  which 
finally  led  the  legislature  of  Virginia  to  recommend 
a  general  convention  of  all  the  States  have  been  de- 
tailed in  a  previous  chapter  of  this  work ;  but  it  is 
due  to  Mr.  Madison's  connection  with  this  move- 
ment, that  they  should  here  be  recapitulated  Avith 
reference  to  his  personal  agency  in  the  various  trans- 
actions. 

A  conflict  of  jurisdiction  between  the  two  States 
of  Virginia   and   Maryland   over  the  waters  which 


Cn   IX.] 


MADISON. 


425 


separated  them  had,  in  the  spring  of  1785,  led  to 
the  appointment  of  commissioners  on  the  part  of 
each  State,  who  met  at  Alexandria  m  March.  These 
commissioners,  of  whom  Mr.  Madison  was  one,  made 
a  \isit  to  General  Washington  at  Mount  Vernon,  and 
it  was  there  proposed  that  the  two  States,  whose 
conflicting  regulations,  ever  since  the  peace,  had  pro- 
duced great  inconvenience  to  their  merchants,  and 
had  been  a  constant  source  of  irritation,  should  be 
recommended  by  the  commissioners  to  make  a  com- 
pact for  the  regulation  of  their  impost  and  foreign 
trade.  Mr.  Madison  has  left  no  ^vritten  claim,  that  I 
am  aware  of,  to  the  authorship  of  this  suggestion,  but 
there  exists  e\idence  of  his  ha\ing  claimed  it  in  con- 
versation.^ The  recommendation  was  made  by  the 
commissioners,  and  their  report  was  adopted  by  both 
States  ;  —  by  Virginia  unconditionally,  and  by  Mary- 


1  In  preparing  the  note  to  page 
342  (ante),  I  refrained  from  at- 
tributing to  General  Washington 
the  suggestion  of  the  enlarged 
plan  recommended  by  the  Alex- 
andria commissioners,  although  it- 
was  concerted  at  his  house,  because 
there  is  no  evidence,  beyond  that 
fact,  of  his  having  proposed  this 
enlargement  of  the  plan.  Since 
that  note  was  printed,  I  have  learned 
in  a  direct  manner,  that  Mr.  Madi- 
son had  stated  to  the  Hon.  Edward 
Coles,  formerly  his  private  secre- 
tary and  afterwards  Governor  of 
Illinois,  that  he  (Mr.  Madison)  first 
suggested  it.  In  assigning,  there- 
fore, to  the  different  individuals 
who  took  a  prominent  part  in  the 

VOL.  I.  54 


measures  which  led  to  the  forma- 
tion of  the  Constitution,  the  various 
suggestions  which  had  an  important 
influence  upon  the  course  of  events, 
—  a  curious  and  interesting  inqui- 
ry,—  I  consider  that  to  Mr.  Madi- 
son belongs  the  credit  of  having 
originated  that  series  of  Virginia 
measures  which  brought  about  the 
meeting  of  commissioners  of  all 
the  States  at  Annapolis,  for  the 
purpose  of  enlarging  the  powers 
of  Congress  over  commerce  ;  while 
Hamilton  is  to  be  considered  the 
author  of  the  plan  in  which  the  Con- 
vention at  Annapolis  was  merged, 
for  an  entire  revision  of  the  federal 
system  and  the  formation  of  a  new 
constitution. 


426  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

land  with  the  quahfication  that  the  States  of  Dela- 
ware and  Pennsylvania  should  be  invited  to  unite  in 
the  plan. 

After  the  commercial  propositions  introduced  by 
Mr.  Madison  had  lain  on  the  table  for  some  time  as 
a  report  from  the  Committee  of  the  Whole,  the  re- 
port of  the  Alexandria  commissioners  was  received 
and  ratified  by  the  legislature  of  Vii'ginia.  Although 
the  friends  of  those  propositions  were  gradually  in- 
creasing, Mr.  Madison  had  no  expectation  tliat  a 
majority  could  be  obtained  in  favor  of  a  grant  of 
commercial  powers  to  Congress  for  a  longer  term 
than  twenty-five  years.  The  idea  of  a  general  con- 
vention of  delegates  from  all  the  States,  which  had 
been  for  some  time  famdiar  to  Mr.  Madison's  mind, 
then  suggested  itself  to  him,  and  he  prepared  and 
caused  to  be  introduced  the  resolution  which  led  to 
the  meeting  that  afterwards  took  place  at  Annapolis, 
for  the  purpose  of  digesting  and  reporting  the  requi- 
site augmentation  of  the  powers  of  Congress  over 
trade.-"^  His  resolution,  he  says,  being,  on  the  last 
day  of  the  session,  "the  alternative  of  adjourning 
without  any  eifort  for  the  crisis  in  the  affairs  of  the 
Union,  obtained  a  general  vote ;  less,  however,  with 
some  of  its  friends,  from  a  confidence  in  the  success 
of  the  experiment,  than  from  a  hope  that  it  might 

1  The  resolve  was  introduced  by  a  great  jealousy  was  felt  against 
Mr.  Tyler,  father  of  the  Ex-Presi-  those  who  had  been  in  the  federal 
dent,  a  person  of  much  influence  in  councils,  and  because  he  was  known 
the  legislature,  and  who  had  never  to  wish  for  an  enlargement  of  the 
been  in  Congress.  Although  pre-  powers  of  Congress.  See  Mad- 
pared  by  Mr.  Madison,  it  was  not  ison's  Introduction  to  the  Debates 
offered  by  him,  for  the  reason  that  in  the  Convention,  Elliot,  V.  113. 


Ch.  IX.]  MADISON.  427 

prove  a  step  to  a  more  comprehensive  and  adequate 
provision  for  the  wants  of  the  Confederacy."  ^ 

Mr.  Madison  was  appointed  one  of  the  commis- 
sioners  of  Virginia   to   the   meeting  at  Annapolis. 
There  he  met  Hamilton,  who  came  meditating  noth 
ing  less  than  the  general  revision  of  the  whole  sys- 
tem of  the  Federal  Union,  and  the  formation  of  a 
new  government.     Mr.  Madison,  although  less  con- 
fident than  the  great  statesman  of  New  York  as  to 
the  measures  that  ought  to  be  taken,  had  yet  for 
several  years  been  equally  convhiced  that  the  perpe- 
tuity and  efficacy  of  the  existing  system  could  not  be 
confided  in.     He  therefore  concurred  readily  in  the 
report  recommending  a  general  convention  of  all  the 
States;  and  when  that  report  was   received  in  the 
legislature  of  Vii'ginia,  he  became  the  author  of  the 
celebrated  act  which  passed  that  body  on  the  4th  of 
December,  17S6,  and  under  which  the  first  appoint- 
ment of  delegates  to  the  Convention  was  made.     It 
was   also    chiefly   tlu^ough   his   exertions,    combined 
with  the  influence  of  Governor  Randolph,  that  Gen- 
eral Washington's  name  was  placed  at  the  head  of 
the  delegation,  and  that  he  was  induced  to   accept 
the   appomtment.      Mr.    Madison   himself  was   the 
fourth  member  of  the  delegation. 

In  the  Convention,  his  labors  must  have  been  far 
more  arduous  than  those  of  any  other  member  of  the 
body.  He  took  a  leading  part  in  the  debates,  speak- 
ing upon  every  important  question;  and  in  addition  to 

1  Ibid.,  p.  114. 


426  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

all  the  usual  duties  devohing  upon  a  person  of  so 
much  ability  and  influence,  he  preserved  a  full  and 
careful  record  of  the  discussions  with  his  o"svn  hand. 
Impressed,  as  he  says,  with  the  magnitude  of  the 
trust  confided  to  the  Convention,  and  foreseeing  the 
interest  that  must  attach  to  an  authentic  exhibition 
of  the  objects,  the  opinions,  and  the  reasonmgs  from 
which  the  new  system  of  government  was  to  receive 
its  peculiar  structure  and  organization,  he  devoted 
the  hours  of  the  night  succeeding  the  session  of  each 
day  to  the  preparation  of  the  record  with  which  his 
name  is  imperishably  associated.  "  Nor  was  I,"  he 
adds,  "  unaware  of  the  value  of  such  a  contribution 
to  the  fund  of  materials  for  the  history  of  a  Constitu- 
tion on  which  would  be  staked  the  happiness  of  a 
people,  great  even  in  its  infancy,  and  possibly  the 
cause  of  liberty  throughout  the  world."  ^ 

As  a  statesman,  he  is  to  be  ranked,  by  a  long  in- 
terval, after  Hamilton ;  but  he  was  a  man  of  emi- 
nent talent,  always  free  from  local  prejudices,  and 
sincerely  studious  of  the  welfare  of  the  whole  coun- 
try. His  perception  of  the  principles  essential  to  the 
contmuance  of  the  Union  and  to  the  safety  and  pros- 
perity of  the  States,  was  accurate  and  clear.  His 
studies  had  made  him  familiar  with  the  examples  of 
ancient  and  modern  liberty,  and  he  had  carefully 
reflected  upon  the  nature  of  the  government  neces- 
sary to  be  established.  He  was  one  of  the  few  per- 
sons who  carried  into  the   Convention  a  conviction 

1  Introduction  to  the  Debates,  Elliot,  V    121. 


Ck.  IX.]  MADISON.  429 

that  an  amendment  of  the  Articles  of  Confederation 
would  not  answer  the  exigencies  of  the  time.  He 
regarded  an  individual  independence  of  the  States  as 
irreconcilable  with  an  aggregate  sovereignty  of  the 
whole,  but  admitted  that  a  consolidation  of  the  States 
into  a  simple  republic  was  both  impracticable  and 
inexpedient.  He  sought,  therefore,  for  some  middle 
ground,  which  would  at  once  support  a  due  suprem- 
acy of  the  national  authority,  and  leave  the  local 
authorities  in  force  for  their  subordinate  objects. 

For  this  purpose,  he  conceived  that  a  system  of 
representation  which  would  operate  without  the  in- 
tervention of  the  States  was  mdispensable ;  that  the 
national  government  should  be  aimed  with  a  positive 
and  complete  authority  in  all  cases  where  a  uniform- 
ity of  measures  was  necessary,  as  in  matters  of  trade, 
and  that  it  should  have  a  negative  upon  the  legisla- 
tive acts  of  the  States,  as  the  crov\^  of  England  had 
before  the  Revolution.     He  thought,  also,  that  the 
national  supremacy  should  be  extended  to  the  judi- 
ciary, and  foresaw  the  necessity  for  national  tribu- 
nals, in  cases  in  which  foreigners  and  citizens   of 
different  States  might  be  concerned,  and  also  for  the 
exercise  of  the  admiralty  jurisdiction.     He  consid- 
ered two  branches  of  the  legislature,  mth  distmct 
origins,  as   indispensable;    recognized  the  necessity 
for  a  national  executive,  and  favored  a  council  of  re- 
vision  of  the  laws,  in  which  should  be  included  the 
great  ministerial  officers  of  the  government.     He  saw 
also,  that,  to  give  the  new  system  its  proper  energy, 
it  would  be  necessary  to  have  it  ratified  by  the  au- 


430  THE  FEDEEAI.   CONSTITUTION.  [Book  III 

thority  of  the  people,  and  not  merely  by  that  of  the 
legislatures.^ 

Such  was  the  outlme  of  the  project  which  he  had 
formed  before  the  assembling  of  the  Convention. 
How  far  his  views  were  modified  by  the  discus- 
sions in  which  he  took  part  will  be  seen  hereafter. 
As  a  speaker  in  a  deliberative  assembly,  the  suc- 
cessive schools  in  which  he  had  been  trained  had 
given  him  a  habit  of  self-possession  which  placed  all 
his  resources  at  his  command.  "Never  wandering 
from  his  subject,"  says  Mr.  Jefferson,  "  into  vain  dec- 
lamation, but  pursuing  it  closely,  in  language  pure, 
classical,  and  copious,  soothing  always  the  feelings 
of  his  adversaries  by  civilities  and  softness  of  expres- 
sion, he  rose  to  the  eminent  station  which  he  held  in 
the  great  national  Convention  of  1787;  and  in  that 
of  Virginia  which  followed,  he  sustained  the  new 
Constitution  in  all  its  parts,  bearing  off  the  palm 
against  the  logic  of  George  Mason  and  the  fervid 
declamation  of  Mr.  Henry.  With  these  consummate 
powers  were  united  a  pure  and  spotless  wtue,  which 
no  calumny  has  ever  attempted  to  sully."  ^ 

Mr.  Madison's  greatest  service  in  the  national  Con- 
vention consisted  in  the  answers  which  he  made  to 
the  objections  of  a  want  of  power  in  that  assembly 
to  frame  and  propose  a  new  constitution,  and  his 
paper  on  this  subject  in  the  Federalist  is  one  of  the 
ablest  in  the  series. 

As  this  work  is  confined  to  the  period  which  ter- 

l  Letter  to  Edmund   Randolph,  2  JclTerson's         Autobiography 

dat«d  New  York,  April  8th,  17S7  Works,  I.  41,  edition  of  1853. 


Ch.  IX.J  IMADISON.  431 

minated  with  the  adoption  of  the  Constitution,  it  is 
not  necessaiy  to  examine  those  points  on  which  the 
two  principal  writers  of  the  FederaUst  became  sepa- 
rated from  each  other,  when  the  administration  of 
the  government  led  to  the  formation  of  the  first  par- 
ties known  in  our  political  history.  These  topics  it 
may  become  my  duty  to  discuss  hereafter,  should  I 
pursue  the  constitutional  history  of  the  country 
through  the  administration  of  Washington.  At 
present,  it  may  be  recorded  of  both,  that,  upon  al- 
most all  the  great  questions  that  arose  before  the 
Constitution  was  finally  adopted,  the  single  purpose 
of  establishing  a  system  as  efficient  as  the  theory 
of  a  purely  republican  government  would  admit, 
was  the  object  of  their  efforts;  and  that,  although 
they  may  have  differed  with  regard  to  the  details  and 
methods  through  which  this  object  was  to  be  reached, 
the  pui'pose  at  which  they  both  aimed  places  them 
in  the  same  rank  at  the  head  of  those  founders  of 
our  government,  towards  whom  the  gratitude  of  the 
succeeding  generations  of  America  must  be  for  ever 
directed. 

1  The  following  extract  from  an  "  Your  book,  as  I   prophesied, 

autograph  letter  of  Mr.  Madison,  sells    nowhere    but    in    Virginia ; 

hitherto   unpublished,   which    lies  a  very  few  copies  only  have  been 

before  me,  written  after  the  adop-  called  for,  either  in  New  York  or 

tion    of   the    Constitution,   shows  in   this    city.      The    language   in 

very    clearly    that    he    concurred  which  it   is  written   will   account 

with  Hamilton  in  the  opinion  that  for  it.     In  order  to  attract  notice, 

the  strongest  government  consistent  I  translated  the  panegyric  in  the 

with  the  republican  form  was  neces-  French  Mercure,  and  had  it  made 

sary  in  the  situation  of  this  country.  part  of  the   advertisement.     I  did 

The  letter  is  dated  at  Philadelphia,  not  translate  the  comment  on  the 

December   10th,    1788,  and  is  ad-  Federal  Constitution, as  you  wished, 

dressed  to  Philip  Mazzei,  at  Paris.  because  I  could  not  spare  the  time. 


432 


THE  TEDERAL  CONSTITUTION.  [Book  III. 


as  well  as  because  I  did  not  ap- 
prove the  tendency  of  it.  Some  of 
your  remarks  prove  that  Horace's 
'  Cmlum  non  animum  mutant  qui 
trans  mare  currunt '  does  not  hold 
without  exception.  In  Europe,  the 
abuses  of  power  continually  before 
your  eyes  have  given  a  bias  to  your 
political  reflections,  wliich  you  did 
not  feel  in  equal  degree  when  you 
left  America,  and  which  you  would 
feel  less  of,  if  you  had  remained  in 
America.  Philosophers  on  the  old 
continent,  in  their  zeal  against  tyr- 
anny would  rush  into  anarchy  ;  as 
the  horrors  of  superstition  drive 
them  into  atheism.  Here,  perhaps, 
the  inconveniences  of  relaxed  gov- 
ernment have  reconciled  too  many 
to  the  opposite  extreme.  If  your 
plan  of  a  single  legislature,  as  in 
Pennsylvania,  &c.,were  adopted,  I 
sincerely  believe  that  it  would  prove 
the  most  deadly  blow  ever  given  to 
republicanism.  Were  I  an  enemy 
to  that  form,  I  would  preach  the 
very  doctrines  which  are  preached 
by  the  enemies  to  the  government 
proposed  for  the  United  States. 
Many  of  our  best  citizens  are  dis- 
gusted with  the  injustice,  instabil- 
ity, and  folly  which  characterize 
the  American  administrations.  The 
number  has  for  some  time  been  rap- 
idly increasing.  Were  the  evils  to 
be  much  longer  protracted,  the  dis- 
gust would  seize  citizens  of  every 
description. 

"It  is  of  infinite  importance  to 
the  cause  of  liberty  to  ascertain  the 
degree  of  it  which  will  consist  with 
the  purposes  of  society.  An  error 
on  one  side  may  be  as  fatal  as  on 


the  other.  Hitherto,  the  error  in 
the  United  States  has  laia  in  the 
excess. 

"  All  the  States,  except  North 
Carolina  and  Rhode  Island,  have 
ratified  the  proposed  Constitution. 
Seven  of  them  have  appointed  their 
Senators,  of  whom  those  of  Vir- 
ginia, R.  H.  Lee  and  Colonel  Gray- 
son, alone  are  among  the  opponents 
of  the  system.  The  appointments 
of  Maryland,  South  Carolina,  and 
Georgia  will  pretty  certainly  be  of 
the  same  stamp  with  the  majority. 
The  House  of  Representatives  is 
yet  to  be  chosen,  everywhere  ex- 
cept in  Pennsylvania.  From  the 
partial  returns  received,  the  elec- 
tion will  wear  a  federal  aspect  un 
less  the  event  in  one  or  two  par- 
ticular counties  should  contradict 
every  calculation.  If  the  eight 
members  from  this  State  be  on  the 
side  of  the  Constitution,  it  will  in 
a  manner  secure  the  majority  in 
that  branch  of  the  Congress  also. 
The  object  of  the  anti-Federalists 
is,  to  bring  about  another  general 
convention,  which  would  either 
agree  on  nothing,  as  would  be 
agreeable  to  some,  and  throw  every 
thing  into  confusion,  or  expunge 
from  the  Constitution  parts  which 
are  held  by  its  friends  to  be  essen- 
tial to  it.  The  latter  party  are 
willing  to  gratify  their  opponents 
with  every  supplemental  provision 
for  general  rights,  but  insist  that 
this  can  be  better  done  in  the  mode 
provided  for  amendments. 

"  I  remain,  with  great  sincerity, 
your  friend  and  servant, 

"Jas.  Madison,  Jk." 


CHAPTER  X. 

Franklin. 

The  Convention  was  graced  and  honored  by  the 
venerable  presence  of  Dr.  Franklm,  then  President 
of  the  State  of  Pennsylvania,  and  in  his  eighty-sec- 
ond year.  He  had  returned  from  Europe  only  two 
years  before,  followed  by  the  admii-ation  and  homage 
of  the  social,  literary,  and  scientific  circles  of  France  ; 
laden  with  honors,  which  he  wore  with  a  plam  and 
shrewd  simplicity ;  and  in  the  full  possession  of  that 
predominatmg  common-sense,  which  had  given  him, 
through  a  long  life,  a  widely  extended  reputation  of 
a  peculiar  character.  The  oldest  of  the  public  men 
of  America,  his  political  life  had  embraced  a  period 
of  more  than  half  a  century,  extending  back  to  a 
time  when  independence  had  not  entered  into  the 
dreams  of  the  boldest  among  the  inhabitants  of  the 
English  Colonies.  For  more  than  twenty  years  be- 
fore the  Revolution  commenced,  he  had  held  a  high 
and  responsible  office  under  the  cro'svn,  the  admmis- 
tration  of  which  affected  the  intercourse  and  connec- 
tion of  all  the  Colonies ;  -^  and  more  than  twenty  years 

^  In  1753,  he  was  appointed  Dep-      ish  Colonies,  from  which  place  he 
uty  Postmaster-General  for  the  Brit-       was   dismissed  in  1774,  while   in 
VOL.  I.  55 


434  THE  FEDEEAL  CONSTITUTION.  [Book  UI. 

before  the  first  Continental  Congress  was  assembled, 
he  had  projected  a  plan  of  union  for  the  thirteen 
Provinces  which  then  embraced  the  whole  of  the 
British  domuiions  in  North  America.-^  Nearly  as 
long,  also,  before  the  Declaration  of  Independence, 
he  had  become  the  resident  agent  in  England  of  sev- 
eral of  the  Colonies,  in  which  post  he  continued,  with 
a  short  interval,  through  all  the  controversies  that 
preceded  the  Revolution,  and  until  reconciliation 
with  the  mother  country  had  become  impossible.^ 

Returning  in  1775,  he  was  immediately  appointed 
by  the  people  of  Pennsylvania  one  of  their  delegates 
in  the  second  Continental  Congress.  In  the  follow- 
ing year,  he  was  sent  as  commissioner  to  France, 
where  he  remained  until  he  w^as  recalled,  and  was 
succeeded  by  Mr.  Jefferson,  in  1785. 

With  the  fame  of  his  two  residences  abroad  —  the 
one  before  and  the  other  after  the  country  had  sev- 
ered its  connection  with  England  —  the  whole  land 
was  filled.  The  first  of  them,  commencing  with  an 
employment  for  settling  the  miserable  disputes  be- 
tween the  people  and  the  Proprietaries  of  Pennsyl- 


England,  on  account  of  the  part  he  1768,  he  received  a  similar  appoint- 

had  taken  in  American  affairs.  ment  from  Georgia ;    in  1769,  he 

^  In   1754.     See  an  account  of  was  chosen  agent  for  New  Jersey  ; 

this  plan,  ante,  p.  8,  and  in  1770,  he  became  agent  for 

2  He  first  went  to   England  in  Massachusetts.      His  whole  resi- 

1757,  as  agent  of  the  Pennsylvania  dence   in   England,  from  1757  to 

Assembly  to  settle   their   difficul-  1775,  embraced  a  period  of  sixteen 

ties  with  the  Proprietaries,  where  years,  two  years  having  been  passed 

he  remained  until  17G3.     In  1764,  at   home.     He  resided  in   France 

he  was  reappointed  provincial  agent  about    nine    years,   from    1776    to 

in  England  for  Pennsylvania;    in  1785. 


Ch.  X.J  FRANKLm.  435 

vania,  was  extended  to  an  agency  for  the  three  othei 
Colonies  of  Georgia,  New  Jersey,  and  Massachusetts, 
which  finally  led  him  to  take  part  in  the  affairs 
of  all  British  America,  and  made  him  virtually  the 
representative  of  American  interests.  His  brief  ser- 
vice in  Congress,  during  which  he  signed  the  Decla- 
ration of  Independence,  was  followed  by  his  appoint- 
ment as  Commissioner  at  the  Court  of  Versailles, 
which  he  made  the  most  important  sphere  that  has 
ever  been  filled  by  any  American  in  Europe,  and 
in  wliich  that  treaty  of  alliance  with  France  was 
negotiated  which  enabled  the  United  States  to  be- 
come in  fact  an  independent  nation. 

His  long  career  of  public  service;  his  emmence 
as  a  pliilosopher,  a  philanthropist,  and  a  thinker; 
the  general  reverence  of  the  people  for  his  character ; 
his  peculiar  power  of  illustrating  and  enforcmg  his 
oi^inions  by  a  method  at  once  original,  simple,  and 
attractive,  —  made  his  presence  of  the  first  impor- 
tance in  an  assembly  which  was  to  embrace  the 
highest  wisdom  and  vii'tue  of  America. 

It  is  chiefly,  however,  by  the  countenance  he 
gave  to  the  effort  to  frame  a  Constitution,  that 
his  services  as  a  member  of  this  body  are  to  be 
estimated.  His  mind  was  at  all  times  ingenious, 
rather  than  large  and  constructive;  and  his  great 
age,  while  it  had  scarcely  at  all  impaired  his  natural 
powers,  had  confirmed  him  in  some  opinions  which 
must  certainly  be  regarded  as  mistaken.  His  desire, 
for  example,  to  have  the  legislature  of  the  United 
States  consist  of  a  single  body,  for  the  sake  of  sim- 


436  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

plicity,  and  his  idea  that  the  chief  executive  magis- 
trate ought  to  receive  no  salary  for  his  official  ser- 
vices, for  the  sake  of  purity,  were  both  singular  and 
unsound. 

But  there  were  points  upon  which  he  displayed  ex- 
traordinary wisdom,  penetration,  and  forecast  When 
an  objection  to  a  proportionate  representation  in  Con- 
gress was  started,  upon  the  ground  that  it  would  en- 
able the  larger  States  to  swallow  up  the  smaller,  he 
declared  that,  as  the  great  States  could  propose  to 
themselves  no  advantage  by  absorbing  their  inferior 
neighbors,  he  did  not  believe  they  would  attempt  it. 
His  recollection  carried  him  back  to  the  early  part 
of  the  century,  when  the  union  between  England 
and  Scotland  was  proposed,  and  when  the  Scotch 
patriots  were  alarmed  by  the  idea  that  they  should 
be  ruined  by  the  superiority  of  England,  unless  they 
had  an  equal  number  of  members  in  Parliament; 
and  yet,  notwithstanding  the  great  inferiority  in  their 
representation  as  established  by  the  act  of  union,  he 
declared,  that,  down  to  that  day,  he  did  not  recollect 
that  any  thing  had  been  done  in  the  Parliament  of 
Great  Britain  to  the  prejudice  of  Scotland.^ 

Although  he  spoke  but  seldom  in  the  Conven- 
tion, his  influence  was  very  great,  and  it  was  al- 
ways exerted  to  cool  the  ardor  of  debate,  and  to 
check  the  tendency  of  such  discussions  to  result  in 

1  He  added,  with  his  usual  quiet  I  believe,  that  the  North  Britons 

humor,  that  "whoever  looks  over  enjoy  their  full  proportion  of  emolu- 

the  lists  of  public  officers,  civil  and  ment."     Madison,    Elliot,  V.  179 
military,  of  that  nation,  will  find, 


Cii.  X.i  FEANKLIN.  437 

irreconcilable  differences.  His  great  age,  his  vener- 
able and  benignant  aspect,  his  wide  reputation,  his 
acute  and  sagacious  philosophy, — which  was  always 
the  embodiment  of  good  sense,  —  woidd  have  given 
him  a  controlling  weight  in  a  much  more  turbulent 
and  a  far  less  intelligent  assembly.  When  —  after 
debates  in  which  the  powerful  intellects  around  him 
had  exhausted  the  subject,  and  both  sides  remained 
firm  in  opinions  diametrically  opposed  —  he  rose  and 
reminded  them  that  they  were  sent  to  consult  and  not 
to  contend,  and  that  declarations  of  a  fixed  opinion 
and  a  determination  never  to  change  it  neither  en- 
lightened nor  convmced  those  who  listened  to  them, 
his  authority  was  felt  by  men  who  could  have  anni- 
hilated any  mere  logical  argument  that  might  have 
proceeded  from  him  in  his  best  days. 

Dr.  Franklin  was  one  of  those  who  entertained 
serious  objections  to  the  Constitution,  but  he  sac- 
tificed  them  before  the  Convention  was  dissolved. 
Believing  a  general  government  to  be  necessary  for 
the  American  States ;  holding  that  every  form  of 
government  might  be  made  a  blessing  to  the  people 
by  a  good  administration ;  and  foreseeing  that  the 
Constitution  would  be  well  administered  for  a  long 
course  of  years,  and  could  only  end  in  despotism 
when  the  people  should  have  become  so  corrupted  as 
to  be  incapable  of  any  other  than  a  despotic  govern- 
ment, he  gladly  embraced  a  system  which  he  was 
astonished  to  find  approaching  so  near  to  pei-fection, 

"  The  opinions  I  have  had  of  its  error's,"  said  he, 
"  I  sacrifice  to  the  public  good.     Within  these  walls 


438  THE  FEDERAX  CONSTITUTION.     '      [Book  m. 

they  were  born,  and  here  they  shall  die.  If  every 
one  of  us,  m  returmng  to  our  constituents,  were  to 
report  the  objections  he  has  had  to  it,  and  endeavor 
to  gain  partisans  in  support  of  them,  we  might  pre- 
vent its  being  generally  received,  and  thereby  lose  all 
the  salutary  effects  and  great  advantages,  resultmg 
naturally  in  our  favor,  among  foreign  nations  as  well 
as  among  ourselves,  from  our  real  or  apparent  una- 
nimity. Much  of  the  strength  and  efficiency  of  any 
government  in  procuring  and  securing  happiness  to 
the  people  depends  on  opinion,  —  on  the  general 
opinion  of  the  goodness  of  the  government,  as  well 
as  of  the  wisdom  and  integrity  of  its  governors,  T 
hope,  therefore,  that  for  our  own  sakes  as  a  part  of 
the  people,  and  for  the  sake  of  posterity,  we  shall  act 
heartily  and  unanimously  in  recommending  this  Con- 
stitution (approved  by  Congress  and  confirmed  by 
the  conventions)  wherever  our  influence  may  extend, 
and  turn  our  future  thoughts  and  endeavors  to  the 
means  of  having  it  well  administered."^ 

And  thus,  with  a  cheerful  confidence  in  the  future, 
sustainmg  the  hopes  of  all  about  him,  and  hailing 
every  omen  that  foretold  the  rising  glories  of  his 
country,^  this  wise  old  man  passed  out  from  the 
assembly,  when  its  anxious  labors  had  been  brought 

1  Madison,     Elliot,  V.  554.  wards  the  President's  chair,  at  the 

~  Mr.  Madison  has  recorded  the  back  of  which  a  rising  sun  happened 

following  anecdote  at   the  end  of  to   be  painted,  observed  to  a  few 

the  Debates,  as  an  incident  worthy  members   near  him,  that   painters 

of     being    known     to     posterity.  had  often  found  it  difficult,  in  their 

"  Whilst   tiie   last  members  were  art,  to  distinguish  a  rising  from  a 

signing.  Dr.  Franklin,  looking  to-  setting   sun.      '  I  have,'   said   he 


Ch.  x,i 


FRANKLIN.  439 


to  a  close  with  a  nearer  approach  to  unanimity  than 
had  ever  been  expected.  He  lived,  borne  down  by 
infirmities, 

"To  draw  his  breath  in  pain" 

for  nearly  three  years  after  the  Convention  was  dis- 
solved; but  it  was  to  see  the  Constitution  established, 
to  witness  the  growing  strength  of  the  new  govern- 
ment, and  to  contemplate  the  opening  successes  and 
the  beneficent  promise  of  Washmgton's  administra- 
tion. Writing  to  the  first  President  in  1789,  he 
said :  "  For  my  o"s^^i  personal  ease,  I  should  have 
died  two  years  ago ;  but  though  those  years  have 
been  spent  in  excruciating  pain,  I  am  pleased  that  I 
have  lived  them,  since  they  have  brought  me  to  see 
our  present  situation."^ 

'  often  and  often,  in  the  course  of  was  rising  or  setting  ;  but  now,  at 

the  session,  and  the  vicissitude  of  length,  I   have   the   happiness   to 

my  hopes  and  fears  as  to  its  issue,  know  that  it  is  a  rising,  and  not  a 

looked  at  that  behind  the  President,  setting  sun.'  " 
without  being  able  to  tell  whether  it  i  Sparks's  Life  of  Franklin,  528 


CHAPTER  XI. 

GOUVERNEUR  MORRIS. 

This  brilliant,  energetic,  and  patriotic  statesman  was 
bom  in  the  Province  of  New  York,  at  Morrisania,  — 
the  seat  of  his  family  for  several  generations, — in  the 
year  1752.  He  was  educated  for  the  bar;  but  in 
1775,  at  the  age  of  three-and-twenty,  he  was  elected 
a  member  of  the  Provincial  Congress  of  New  York, 
m  which  he  became  at  once  distinguished.  \Yhen 
the  recommendation  of  the  Continental  Congress  to 
the  Colonies,  to  organize  new  forms  of  government, 
was  received,  he  took  a  leading  place  in  the  de- 
bates on  the  formation  of  a  new  constitution  for  the 
State ;  and  when  the  subject  of  independence  was 
brought  forward,  in  order  that  the  delegates  of 
New  York  in  the  Continental  Congress  might  be 
clothed  mth  sufficient  authority,  he  delivered  a 
speech  of  great  power,  of  which  fragments  only 
are  preserved,  but  which  evidently  embraced  the 
most  comprehensive  and  statesmanlike  views  of 
the  situation  and  future  prospects  of  this  country. 
Speaking  of  the  capacity  of  America  to  sustain 
herself  without  a  connection  with  Great  Britain, 
he   said :  — 


Ch.  XI.]  GOUVERNEUR    MORRIS.  441 

"  Thus,  Sir,  by  means  of  that  great  gulf  which  rolls 
its  waves  between  Europe  and  America;  by  the  situa- 
tion of  these  Colonies,  always  adapted  to  hinder  or 
interrupt  all  communication  between  the  two ;  by  the 
productions  of  our  soil,  which  the  Almighty  has  filled 
with  every  necessary  to  make  us  a  great  maritime 
people;  by  the  extent  of  our  coasts  and  those  im- 
mense rivers,  which  serve  at  once  to  open  a  commu- 
nication with  our  interior  country,  and  to  teach  us 
the  arts  of  navigation ;  by  those  vast  fisheries,  which, 
affording  an  inexhaustible  mine  of  wealth  and  a 
cradle  of  industry,  breed  hardy  mariners,  inured  to 
danger  and  fatigue ;  finally,  by  the  unconquerable 
spirit  of  freemen,  deeply  interested  in  the  preserva- 
tion of  a  government  which  secures  to  them  the 
blessings  of  liberty  and  exalts  the  dignity  of  man- 
kind ;  —  by  all  these,  I  expect  a  full  and  lasting 
defence  against  any  and  every  part  of  the  earth  ; 
while  the  great  advantages  to  be  derived  from  a 
friendly  intercourse  with  this  country  almost  render 
the  means  of  defence  unnecessary,  from  the  great 
improbability  of  being  attacked.  So  far,  peace  seems 
to  smile  upon  our  future  independence.  But  that 
this  fair  goddess  will  equally  crown  our  union  Math 
Great  Britain,  my  fondest  hopes  cannot  lead  me  to 
suppose.  Every  war  in  which  she  is  engaged  must 
necessarily  involve  us  in  its  detestable  consequences  ; 
whilst,  weak  and  unarmed,  we  have  no  shield  of 
defence,  unless  such  as  she  may  please  (for  her  omti 
sake)  to  afford,  or  else  the  pity  of  her  enemies  and 

VOL.  I.  56 


442  THE  FEDERAL  CONSTITUTION.  [Book  in, 

the  insignificance  of  slaves  beneath  the  attention  of 
a  generous  foe."-^ 

In  1778,  Mr.  Morris  was  chosen  a  delegate  to  the 
Continental  Congress  from  the  State  of  New  York. 
His  reputation  for  talent,  zeal,  activity,  and  singular 
capacity  for  business,  had  preceded  him.  On  the  very 
day  when  he  presented  his  credentials,  he  was  placed 
upon  a  committee  to  proceed  to  Valley  Forge,  to  con- 
fer with  General  Washington  on  the  measures  neces- 
sary for  a  reorganization  of  the  army.  He  remained 
in  Congress  for  two  years,  discharging,  -with  great  abil- 
ity and  high  patriotism,  the  most  important  functions, 
and  subjected  all  the  while  to  the  most  unjust  popular 
suspicions  of  his  fidelity  to  the  cause  of  the  country. 
Few  of  all  the  prominent  men  of  the  Revolution 
sacrificed  or  suffered  more  than  Gouverneur  Morris, 
The  fact  that  all  the  other  members  of  his  family 
adhered  to  the  royalist  side,  and  an  ineffectual  effort 
which  he  once  made  to  visit  his  mother,  at  his  ances- 
tral home,  then  within  the  British  lines,  gave  his 
enemies  the  means  of  inflicting  upon  him  a  deep 
injury  in  the  popular  estimation.  He  was  not  re- 
elected to  Congress ;  but  short  as  his  career  in  that 
body  was,  it  was  filled  with  services  inferior  to  those 
of  none  of  his  associates. 

1  Sparks's  Life  of  G.  Morris,  I.  insight  of  the  future  resources  of 
103.  The  florid  and  declamatory  this  country,  and  made  many  re- 
style  of  this  speech  belongs  to  the  markable  predictions  of  its  great- 
period  and  to  the  youth  of  the  speak-  ness.  His  biographer  has  claimed 
er.  Thebreadthof  its  views  and  its  for  him  the  suggestion  of  the  plan 
vigor  of  thought  display  the  char-  for  uniting  the  waters  of  Lake  Erie 
acteristics  which  belonged  to  him  with  those  of  the  Hudson,  and  upoa 
through  life.     He  had  a  prophetic  very  strong  evidence. 


Ch.  XI.l 


GOUVERNEUR  MORRIS. 


443 


Before  he  left  Congress,  in  February,  1T79,  he 
made  —  as  chairman  of  a  committee  to  whom  cer- 
tain communications  from  the  French  minister  in  the 
United  States  vrere  referred  —  a  report  which  became 
the  basis  of  the  peace  that  afterwards  followed  ;  and 
when  the  principles  on  which  the  peace  was  to  be 
negotiated  had  been  settled,  he  drew  the  instructions 
to  the  commissioners,  and  they  were  unanimously 
adopted  without  change.-^ 

On  leaving  Congress,  Mr.  Morris  took  up  his  resi- 
dence in  Philadelphia,, and  resumed  the  practice  of 
the  law.  His  remarkable  talent  for  business,  how- 
ever, and  his  intimate  knowledge  of  financial  sub- 
jects, led  to  his  appointment  as  Assistant  Financier 
with  Robert  Morris.  In  this  capacity,  he  suggested 
the  idea  of  the  decimal  notation,  which  was  after- 
wards made  the  basis  of  the  coinage  of  the  United 
States.^ 


1  See  the  Report  and  the  debates 
thereon,  Secret  Journals,  II.  132  et 
seq. 

"  In  January,  1782,  the  Finan- 
cier made  a  report,  which  was  offi- 
cially signed  by  him,  but  which 
Mr.  Jefferson  says  was  prepared 
by  his  Assistant,  Gouverneur  Mor- 
ris. It  embraced  an  elaborate  state- 
ment of  the  denominations  and  com- 
parative value  of  the  foreign  coins 
in  circulation  in  the  different  States, 
and  proposed  the  adoption  of  a  mon- 
ey unit  and  a  system  of  decimal  no- 
tation for  a  new  coinage.  The  unit 
suggested  was  such  a  portion  of 
ptire  silver  as  would  be  a  common 
measure  of  the  penny  of  every  State, 


without  leaving  a  fraction.  This 
common  divisor  Mr.  Morris  found 
to  be  one  1440lh  of  a  dollar,  or  one 
1600th  of  the  crown  sterling.  The 
value  of  a  dollar  was  therefore  to  be 
expressed  by  1,440  units,  and  that 
of  a  crown  by  1,600,  each  unit  con- 
taining a  quarter  of  a  grain  of  fine 
silver.  Nothing,  however,  was 
done,  until  1784,  when  Mr.  Jeffer- 
son, being  in  Congress,  took  up 
the  subject.  He  approved  of  Mr. 
Morris's  general  views,  and  his 
method  of  decimal  notation,  but 
objected  to  his  unit  as  too  minute 
for  ordinary  use.  Mr.  Jefferson 
proposed  the  dollar  as  the  unit  of 
account  and  payment,  and  that  its 


444  THE  FEDEEAL  CONSTITUTION.  [Book  m. 

Having  been  appointed  one  of  the  delegates  from 
the  State  of  Pennsylvania  to  the  Convention  for 
formmg  the  Constitution  of  the  United  States,  Mr. 
Morris  attended  the  whole  session,  with  the  excep- 
tion of  a  few  days  in  June,  and  entered  into  its 
business  with  his  accustomed  ardor.  To  remove 
impediments,  obviate  objections,  and  conciliate  jar- 
ring opinions,  he  exerted  all  his  fine  faculties,  and 
employed  his  remarkable  eloquence.  But  he  is 
chiefly  to  be  remembered,  in  connection  with  the 
Constitution,  as  the  author  of  its  text.  To  his  pen 
belongs  the  merit  of  that  clear  and  finished  style,  — 
that  lucidus  ordo, — that  admirable  perspicuity,  which 
have  so  much  diminished  the  labors  and  hazards  of 
interpretation  for  all  future  ages.-^ 

The  character  of  Gouverneur  Morris  was  balanced 
by  many  admirable  qualities.  His  self-possession 
Avas  so  complete  in  all  circumstances,  that  he  is  said 
to  have  declared,  that  he  never  knew  the  sensation 

divisions  and   subdivisions   should  and  the  various  resolutions  which 

be  in  the  decimal  ratio.     This  plan  had  been  adopted,  were  placed  in 

was  adopted  in  August,  1785,  and  the  hands  of  a  committee  of  revis- 

in  1786  the  names  and  characters  ion,  of  which  Dr.  William  Samuel 

ofthe  coins  were  determined.     The  Johnson,  of  Connecticut,  was  the 

ordinance  establishing  the  coinage  chairman  ;  the  other  members  be- 

was  passed  August  8,  1786,   and  ing  Messrs.  Hamilton,  Gouverneur 

that  establishing  the  mint,  on  the  Morris,  Madison,  and  King.     The 

16th  of  October,  in  the  same  year.  chairman   committed  the  work  to 

(Jefferson's Autobiography,  Works,  Mr.  Morris,  and  the  Constitution, 

I.   52-54.      Life   of   Gouverneur  as  adopted,  was  prepared  by  him. 

Morris,  I.  273.     Journals  of  Con-  (See  Mr.  Madison's  letter  to  Mr. 

gress,  XI.  179,  254.)  Sparks,  Life  of  Gouverneur  Mor- 

1  The   materials    for   the    final  ris,  L    284.     Madison's   Debates, 

preparation  of  the  instrument,  con-  Elliot,  V.  5.30  ) 
sisting  of  a  reported  draft  in  detail 


Ch.  XI.]  GOUVERNEUR    MORRIS.  445 

of  fear,  inferiority,  or  embarrassment,  in  his  inter- 
course with  men.  Undoubtedly,  his  self-confidence 
amounted  sometimes  to  boldness  and  presumption; 
but  we  have  it  on  no  less  an  authority  than  Mr. 
Madison's,  that  he  added  to  it  a  candid  surrender  of 
his  opinions,  when  the  lights  of  discussion  satisfied 
him  that  they  had  been  too  hastily  formed.^  He 
was  a  man  of  genius,  fond  of  society  and  pleasure, 
but  capable  of  prodigious  exertion  and  industr)^  and 
possessed  of  great  powers  of  eloquence. 

He  loved  to  indulge  in  speculations  on  the  future 
condition  of  the  country,  and  often  foresaw  results 
which  gave  him  patience  under  the  existing  state 
of  things.  In  1784,  writing  to  Mr.  Jay,  at  a  time 
when  the  clashing  commercial  regulations  of  the 
States  seemed  about  to  put  an  end  to  the  Union, 
he  said :  "  True  it  is,  that  the  general  government 
wants  energy,  and  equally  true  it  is,  that  this  want 
will  eventually  be  supplied.  A  national  spirit  is  the 
natural  result  of  national  existence,  and  although 
some  of  the  present  generation  may  feel  colonial 
oppositions  of  opinion,  yet  this  generation  will  die 
away  and  give  place  to  a  race  of  Americans."  ^ 

He  was  himself,  at  all  times,  an  American,  and 
never  more  so  than  during  the  discussions  of  the 
Convention.  Appealing  to  his  colleagues  to  extend 
theii'  views  beyond  the  narrow  limits  of  place 
whence  they  derived  their  political  origin,  he  de- 
clared, with  his  characteristic  energy  and  point,  that 

1  Life  of  Morris,  I.  28-1-286.  2  [bid.  266. 


446  THE  FEDERAL  CONSTITUTION.  IBook  III. 

State  attachments  and  State  importance  had  been 
the  bane  of  this  country.  "  We  cannot  annihilate," 
said  he,  "  but  we  may  perhaps  take  out  the  teeth  of 
the  serpents."^ 

In  truth,  the  circumstances  of  his  life  had  pre- 
vented him  from  feeling  those  strong  local  attach- 
ments which  he  considered  the  great  impediments  to 
the  national  prosperity.  Born  in  one  State,  he  had 
then  resided  for  seven  years  in  another,  from  whose 
inhabitants  he  had  received  at  least  equal  marks  of 
confidence  with  those  that  had  been  bestowed  upon 
him  by  the  people  among  whom  he  first  entered 
public  life. 

In  his  political  opinions,  he  probably  went  farther 
in  opposition  to  democratic  tendencies  than  any  other 
person  in  the  Convention.  He  was  in  favor  of  an 
executive  during  good  behavior,  of  a  Senate  for  life, 
and  of  a  freehold  qualification  for  electors  of  repre- 
sentatives. In  several  other  respects,  the  Constitu- 
tion, as  actually  framed,  was  distasteful  to  him ;  but, 
like  many  of  the  other  eminent  men  who  doubted 
its  theoretical  or  practical  wisdom,  he  determined  at 
once  to  abide  by  the  voice  of  the  majority.  He  saw 
that,  as  soon  as  the  plan  should  go  forth,  all  other 
considerations  ought  to  be  laid  aside,  and  the  great 
question  ought  to  be.  Shall  there  be  a  national  gov- 
ernment or  not "?  He  acknowledged  that  the  alterna- 
tives were,  the  adoption  of  the  system  proposed,  or  a 
general  anarchy  ;  —  and  before  this  single  and  fear- 

1  Madison,  Elliot,  V.  276,  277. 


Ch.  XI.]  GOUVERNEUR   MORRIS.  447 

ful  issue  all  questions  of  individual  opinion  or  pref- 
erence sank  into  insignificance.-^  It  is  a  proof  both 
of  his  smcerity  and  of  the  estimate  in  which  his  abili- 
ties were  held,  that,  when  this  great  issue  was  pre- 
sented to  the  people,  he  was  invited  by  Hamilton  to 
become  one  of  the  writers  of  the  Federalist.^  It  is 
not  known  why  he  did  not  embrace  the  opportunity 
of  connecting  himself  with  that  celebrated  publica- 
tion ;  but  his  correspondence  shows  that  it  was  from 
no  want  of  interest  in  the  result.  He  took  pains 
to  give  to  Washmgton  his  decided  testimony,  from 
personal  observation,  that  the  idea  of  his  refusing 
the  Presidency  would,  if  it  prevailed,  be  fatal  to  the 
Constitution  m  many  parts  of  the  country.^ 

Mr.  Morris  filled  two  important  public  stations, 
after  the  adoption  of  the  Constitution.  He  was  the 
first  Minister  to  France  appointed  by  General  Wash- 
ington, and  filled  that  office  from  May,  1792,  until 
August,  1794.  In  February,  1800,  he  was  chosen 
by  the  legislature  of  New  York  to  supply  a  vacancy 
in  the  Senate  of  the  United  States,  which  he  filled 
until  the  4th  of  March,  1803.  He  died  at  Mor- 
risania  on  the  6th  of  November,  1818.  "  Let  us 
forget  party,"  said  he,  "  and  think  of  our  country, 
which  embraces  all  parties."* 

1  Madison,  Elliot,  V.  556.  3  ibid.  288-290. 

2  Life,  I.  237.  *  Ibid.  517. 


CHAPTER  XII. 

King. 

RuFUS  King,  celebrated  as  a  jurist,  a  statesman, 
an  orator,  and  a  diplomatist,  was  sent  to  the  Con- 
vention by  the  Commonwealth  of  Massachusetts. 
Born  in  her  District  of  Maine,  in  1755,  and  gradu- 
ated at  Harvard  College  in  1777,  he  came  very  early 
into  public  life,  and  was  rarely  out  of  it  until  his 
death,  which  occurred  in  1827,  in  the  seventy-third 
year  of  his  age. 

His  first  public  service  was  in  the  year  1778,  as  a 
volunteer  in  the  expedition  against  the  British  in 
Rhode  Island,  in  which  he  acted  as  aide-de-camp  to 
General  Sullivan.  In  1780,  he  commenced  the  prac- 
tice of  the  law  in  the  town  of  Newburyport,  and  was 
soon  after  elected  from  that  town  to  the  legislature 
of  the  State.  There  he  distinguished  himself  by  a 
very  powerful  speech  in  favor  of  grantmg  to  the 
general  government  the  five  per  cent,  impost  recom- 
mended by  Congress  as  part  of  the  revenue  system 
of  1783. 

He  was  soon  after  elected  a  member  of  Congress 
from  Massachusetts,  in  which  body  he  took  his  seat 
on  the  6th  of  December,  1784,  and  served  until  the 


Ch.  xn.]  KING.  449 

close  of  the  year  1787.  He  was  thus  a  member 
both  of  the  Convention  for  forming  the  Constitution 
and  of  the  Congress  which  sanctioned  and  referred  it 
to  the  people.  He  was  also  a  member  of  the  Con- 
vention of  Massachusetts,  in  which  the  Constitution 
was  ratified  by  that  State. 

Mr.  King  did  not  favor  the  plan  of  a  convention 
for  the  revision  of  the  federal  system,  until  after  the 
meeting  at  Annapolis  had  been  held ;  and,  indeed, 
he  did  not  concur  in  its  expediency,  until  after  the 
troubles  in  Massachusetts  had  made  its  necessity  ap- 
parent. In  1785,  as  we  have  seen,  he  joined  with 
the  other  members  of  the  Massachusetts  delegation 
in  opposing  it.-^  In  the  autumn  of  1786,  when  the 
report  of  the  Annapolis  Convention  was  before  Con- 
gress, he  expressed  the  opinion,  in  person,  to  the 
legislature  of  Massachusetts,  that  the  Articles  of 
Confederation  could  not  be  altered,  except  by  the 
consent  of  Congress  and  the  confirmation  of  the  sev- 
eral legislatures ;  that  Congress  ought,  in  the  first 
instance,  to  make  the  examination  of  the  federal  sys- 
tem, since,  if  it  was  done  by  a  convention,  no  legis- 
lature would  have  a  right  to  confiim  it ;  and  further, 
that,  if  Congress  should  reject  the  report  of  a  conven- 
tion, the  most  fatal  consequences  might  follow.  For 
these  reasons,  he  at  that  time  held  Congress  to  be 
the  proper  body  to  propose  alterations.^ 


1  Ante,  p.  339,  note.  account  of  the  svdte  of  national  af 

2  Mr.  King  being  in  Boston  in  fairs.  For  an  abstract  of  his  ad- 
October,  1786,  was  desired  by  the  dress,  see  Boston  Magazine  for  the 
legislature  to  attend  and  give  an  year  1786,  p.  406. 

VOL.  I.  57 


450  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

At  the  moment  when  he  was  making  this  address 
to  the  legislature,  the  disturbances  in  Massachusetts 
were  fast  gathering  into  that  formidable  insurrection 
which  two  months  afterwards  burst  forth  in  the  inte- 
rior of  the  State.^  Mr.  King  spoke  of  these  commo- 
tions in  grave  and  pointed  tel*ms.  He  told  the  legis- 
lature that  Congress  viewed  them  with  deep  anxiety ; 
that  every  member  of  the  national  councils  felt  his 
life,  liberty,  and  property  to  be  involved  in  the  issue 
of  their  decisions ;  that  the  United  States  would  not 
be  inactive  on  such  an  occasion,  for,  if  the  lawful 
authority  of  the  State  were  to  be  prostrated,  every 
other  government  would  eventually  be  swept  away. 
He  entreated  them  to  remember,  that,  if  the  gov- 
ernment were  in  a  minority  in  the  State,  they 
had  a  majority  of  every  State  in  the  Union  to 
join  them.^ 

He  returned  to  Congress  immediately.  But  there 
he  found  that  the  reliance  which  he  had  placed  upon 
the  ability  of  the  Confederation  to  interfere  and  sup- 
press such  a  rebellion  was  not  well  founded.  The 
power  was  even  doubted,  or  denied,  by  some  of  the 
best  statesmen  in  that  body;  and  although  the  in- 
surrection was  happily  put  down  by  the  government 
of  the  State  itself,  the  fearful  exposure  of  a  want 
of  external  power  adequate  to  such  emergencies  pro- 
duced in  Mr.  King,  as  in  many  others,  a  great  change 
of  views,  both  as  to  the  necessity  for  a  radical  change 
of  the  national  government  and  as  to  the  mode  of 

1  Ante,  p.  266  et  seq.  ^  Ibid 


Cb.  XII.]  KING.  451 

effecting  it.  His  vote,  in  February,  was  given  to 
the  proposition  introduced  by  the  delegation  of  New 
York  for  a  national  convention ;  and  when  that 
failed,  he  united  with  his  colleague,  Mr.  Dane,  in 
brmging  forward  the  resolution  by  which  the  Con- 
vention was  finally  sanctioned  in  Congress.-^ 

The  Convention  having  been  sanctioned  by  Con- 
gress, no  man  was  more  ready  than  Mr.  King  to 
maintain  its  power  to  deliberate  on  and  propose  any 
alterations  that  Congress  could  have  suggested  in  the 
Federal  Articles.  He  held  that  the  proposmg  of  an 
entire  change  in  the  mode  of  suffrage  in  the  national 
legislature,  from  a  representation  of  the  States  alone 
to  a  representation  of  the  people,  was  wdthin  the  scope 
of  their  powers,  and  consistent  with  the  Union ;  for  if 
that  Union,  on  the  one  hand,  involved  the  idea  of  a 
confederation,  on  the  other  hand  it  contained  also 
the  idea  of  consolidation,  from  which  a  national  char- 
acter resulted  to  the  individuals  of  whom  the  States 
were  composed.  He  doubted  the  practicability  of 
annihilating  the  State  governments,  but  thought  that 
much  of  their  power  ought  to  be  taken  from  them.^ 
He  declared,  that,  when  every  tnan  in  America  might 
be  secured  in  his  rights,  by  a  government  fomided  on 
equality  of  representation,  he  could  not  sacrifice  such 
a  substantial  good  to  the  phantom  of  State  sover- 
eignty. If  this  illusion  were  to  continue  to  prevail, 
he  should  be  prepared  for  any  event,  rather  than  sit 
down  under  a  government  founded  on  a  vicious  prin- 

1  Journals,  XII.  15-17.  2  Madison,  Elliot,  V.  212,  213 


452  THE  FEDEKAL  CONSTITUTION.  IBooK  III 

ciple   of  representation,  and   one   that   must  be  as 
short-lived  as  it  would  be  unjust.^ 

There  is  one  feature  of  the  Constitution  with 
which  the  name  of  Mr.  King  should  always  be  con- 
nected, and  of  which  he  may  be  said,  indeed,  to  have 
been  the  author.  Towards  the  close  of  the  session, 
he  introduced  the  prohibition  on  the  States  to  pass 
laws  affecting  the  obligation  of  contracts.  It  ap- 
pears that  the  Ordinance  for  the  government  of  the 
Northwestern  Territory,  which  had  been  passed  by 
Congress  about  a  month  previous,  contained  a  simi- 
lar prohibition  on  the  States  to  be  formed  out  of 
that  territory.  That  any  of  the  jurists  who  were 
concerned  in  the  framing  of  either  instrument  fore- 
saw at  the  moment  all  the  great  future  unportance 
and  extensive  operation  of  this  wise  and  effective 
provision,  we  are  not  authorized  to  offirm.  But  a 
clause  which  has  enabled  the  supreme  national  judi- 
cature to  exercise  a  vast,  direct,  and  uniform  influ- 
ence on  the  security  of  property  throughout  all  the 
States  of  this  Confederacy,  should  be  permanently 
connected  with  the  names  of  its  authors.^ 

1  Madison,  Elliot,  V.  266.  lating  to  contracts  was  in  these 

2  The  Ordinance  for  the  govern-  words:  "  And  in  the  just  preser- 
ment  of  the  Northwestern  Terri-  vation  of  rights  and  property,  it  is 
tory  was  drawn  by  Nathan  Dane  understood  and  declared,  that  no 
of  Massachusetts.  It  was  reported  law  ought  ever  to  be  made  or 
in  Congress  July  11th,  1787,  and  have  force  in  the  said  territory, 
was  passed  July  13th.  The  com-  that  shall  in  any  manner  whatever 
mittee  by  whom  it  was  reported  interfere  with  or  affect  private 
were  Messrs.  Carrington  and  R.  contracts  or  engagements,  botid 
H.  Lee  of  Virginia,  Kearney  of  fide  and  without  fraud  previously 
Delaware,  Smith  of  New  York,  formed."  On  the  28th  of  August, 
and   Mr.  Dane.     The  clause   re-  Mr.  King  moved  in  the  Conven- 


Ch.  XII.]  KING.  453 

Mr.  King  was  but  little  past  the  age  of  thirty 
when  the  Constitution  was  adopted.  After  that 
event,  he  went  to  reside  in  the  city  of  New  York, 
and  entered  upon  the  career  of  distinction  which 
filled  up  the  residue  of  his  life,  as  a  Senator  in  Con- 
gress, and  as  Minister  to  England.  No  formal  biog- 
raphy of  him  has  yet  appeared;  but  when  that 
duty  shall  have  been  discharged  by  those  to  whom 
it  appropriately  belongs,  there  will  be  added  to  our 
literature  an  account  of  a  man  of  the  most  eminent 
abilities  and  the  purest  patriotism,  Avhose  influence 
and  agency  in  the  great  transactions  which  attended 
the  origin  and  first  operations  of  the  government 
were  of  the  utmost  importance. 

tion  to  insert  the  same  clause  in  which  it  now  stands  in  the  Con- 

the  Constitution ;   but  it  was  op-  stitution.      (Madison,    Elliot,    V. 

posed,  and  was  not  finally  adopted  ,    485 ;   Journal  of  the  Convention, 

until   September  14,  when  it  was  Elliot,  I.  311.) 
incorporated  in  the  phraseology  in 


CHAPTEE   XIII. 

Charles  Cotesworth  Pinckney. 

Charles  Cotesworth  Pinckney  of  South  Caro- 
lina, the  eldest  son  of  a  chief  justice  of  that  Colony, 
distinguished  both  as  a  soldier  and  a  ci\dlian,  was 
educated  in  England,  and  read  law  at  the  Temple. 
He  returned  to  his  native  province  in  1769,  and 
commenced  the  practice  of  his  profession;  which, 
like  many  of  the  young  American  barristers  of  that 
day,  he  was  obliged  to  abandon  for  the  duties  of  the 
camp,  when  the  troubles  of  the  Revolution  began. 
He  became  colonel  of  the  first  regiment  of  the  Caro- 
lina infantry,  and  served  under  General  Moultrie  in 
the  defence  of  the  fort  on  Sullivan's  Island.  This 
gallant  resistance  having  freed  the  South,  for  a  time, 
from  invasion,  Pinckney  repaired  to  the  Northern 
army,  and  was  made  aide-de-camp  to  General  Wash- 
ington.; in  which  capacity  he  served  at  the  battles 
of  the  Brandyvvine  and  Germantown.  He  afterwards 
acquired  great  distinction  in  the  defence  of  South 
Carolina  against  the  British  under  Sir  Henry  Clinton. 

On  the  return  of  peace,  he  devoted  himself  to  the 
law,  in  which  he  became  eminent.  He  belonged  to 
that  school  of  public  men,  who  had  been  trained  in 


Ch.  Xni.]       CHARLES   COTESWORTH  PINCKNEY.  455 

the  service  of  the  country  under  the  eye  of  "Washing- 
ton, and  who  had  experienced  with  him  the  fatal 
defects  of  the  successive  governments  which  followed 
the  Declaration  of  Independence.  Of  his  abilities, 
patriotism,  and  purity  of  character  we  have  the 
strongest  evidence,  in  the  repeated  efforts  made  by 
Washington,  after  the  establishment  of  the  Consti- 
tution, to  induce  him  to  accept  some  of  the  most 
important  posts  in  the  government. 

He  was,  indeed,  one  of  that  order  of  men  to  whom 
Washington  gave  his  entire  confidence  from  the  first. 
A  ripe  scholar,  a  profound  lawyer,  with  Revolutionary 
laurels  of  the  most  honorable  kind,  —  wise,  energetic, 
and  disinterested,  —  it  is  not  singular  that  the  peo- 
ple of  South  Carolina  should  have  selected  him  as 
one  of  their  delegates  to  an  assembly,  which  was  to 
frame  a  new  constitution  of  government  for  the  coun- 
try to  whose  service  his  earlier  years  had  been  de- 
voted. 

General  Pinckney  entered  the  Convention  with  a 
desire  to  adhere,  if  possible,  to  the  characteristic 
principles  of  the  Confederation;  but  also  with  the 
wish  to  make  that  government  more  effective,  by 
giving  to  it  distinct  departments  and  enlarged  pow- 
ers.-^ But  in  the  progress  of  the  discussions,  he  sur- 
rendered these  views,  and  became  a  party  to  those 
arrangements  by  which  mutual  concessions  between 
the  opposing  sections  of  the  Union  made  a  different 
foiin  of  government  a  practicable  result. 

1  Madison,  Elliot,  V.  133. 


456  THE  FEDEEAL  CONSTITUTION.  [Book  UI. 

He  was  a  strenuous  supporter  of  the  interests  of 
the  slaveholding  States,  in  all  that  related  to  their 
right  to  hold  and  increase  their  slave  ]3opulation. 
He  contended  earnestly  against  a  grant  of  authority 
to  the  general  government  to  prohibit  the  importa- 
tion of  slaves ;  for  he  supposed  that  his  constituents 
would  not  surrender  that  right.  But  he  finally  en- 
tered into  the  arrangement,  by  which  the  postpone- 
ment of  the  power  to  prohibit  the  slave-trade  to  the 
year  1808  was  made  a  ground  of  consent  on  the 
part  of  the  Southern  States  to  give  the  regulation  of 
commerce  to  the  Union.  He  considered  it,  he  said, 
the  true  interest  of  the  Southern  States  to  have  no 
regulation  of  commerce ;  but  he  yielded  it,  in  consid- 
eration of  the  losses  brought  upon  the  commerce  of 
the  Eastern  States  by  the  Revolution,  and  of  their 
liberality  towards  the  interests  of  the  Southern  por- 
tion of  the  Confederacy. 

The  framers  of  the  Constitution  of  the  United 
States  have  often  been  bitterly  reproached  for  per- 
mitting the  slave-trade  to  be  carried  on  for  twenty 
years  after  the  period  of  its  formation;  and  the  East- 
ern States  have  been  especially  accused  of  a  sordid 
spirit  of  trade  in  purchasing  for  themselves  the  ad- 
vantage of  a  national  regulation  of  commerce  by 
this  concession.  It  is  the  duty  of  History,  however, 
to  record  the  facts  in  their  true  relations. 

At  the  time  when  the  Convention  for  framing  our 
Constitution  was  assembled,  no  nation  had  prohibited 
the  African  slave-trade.  The  English  Quakers,  fol- 
lowing the  example  of  their  American  brethren,  had 


Ch.  Xni.]        CHAKLES  COTESWOHTH  PINCKNEY.  457 

begun  to  move  upon  the  subject,  but  it  was  not 
brought  formally  before  Parliament  until  1788 ;  the 
trade  was  not  abolished  by  act  of  Parliament  until 
1807,  nor  made  a  felony  until  1810.  Napoleon's 
decree  of  1815  was  the  first  French  enactment 
against  the  traffic. 

But  in  1787,  many  of  the  members  of  the  Ameri- 
can Convention  insisted  that  the  power  to  put  an 
end  to  this  trade  ought  to  be  vested  in  the  new  gov- 
ernment which  they  were  endeavoring  to  form.  But 
they  found  certain  of  the  Southern  States  unwilling 
to  deprive  themselves  of  the  supply  of  this  species  of 
labor  for  their  new  and  yet  unoccupied  lands.  Those 
States  would  not  consent  to  a  power  of  immediate 
prohibition,  and  they  were  extremely  reluctant  to 
yield  even  a  power  that  might  be  used  at  a  future 
period.  They  preferred  to  keep  the  whole  subject 
in  their  own  hands,  and  to  determine  for  themselves 
when  the  importation  should  cease.  The  members 
of  the  Convention,  therefore,  who  desired  the  aboli- 
tion of  this  trade,  found  that,  if  they  attempted  to 
force  these  States  to  a  concession  that  it  ought  to 
be  immediately  prohibited,  either  the  regulation  of 
commerce  —  the  chief  object  for  which  the  Con- 
vention had  been  called  —  could  not  be  obtained 
for  the  new  Constitution,  or,  if  it  were  obtained, 
several  of  the  Southern  States  would  be  excluded 
from  the  Union.  The  question,  then,  that  presented 
itself  to  them  was  a  great  question  of  humanity  and 
public  policy,  to  be  judged  and  decided  upon  all  the 
circumstances  that  surrounded  it. 

VOL.  I.  58 


458  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

Were  they  to  form  a  Union  that  should  include 
only  those  States  willing  to  consent  to  an  immediate 
prohibition  of  the  slave-trade,  and  thus  leave  the 
rest  of  the  States  out  of  that  Union,  and  independent 
of  its  power  to  restrain  the  importation  of  slaves  1 
Were  they  to  abandon  the  hope  of  forming  a  new 
Constitution  for  the  thirteen  States  that  had  gone 
together  through  all  the  conflicts  and  trials  and 
sacrifices  of  the  Revolution,  or  were  they  to  form 
such  a  government,  and  secure  to  it  the  power  at 
some  early  period  of  putting  an  end  to  this  traffic  ? 
If  they  were  to  do  the  latter,  —  if  the  cause  of  hu- 
manity demanded  action  upon  this  and  all  the  other 
great  objects  dependent  upon  their  decisions,  —  how 
could  the  commercial  interests  of  the  country  be  bet- 
ter used,  than  in  the  acquisition  of  a  power  to  free 
its  commerce  from  the  stain  and  reproach  of  this 
inhuman  traffic  1  By  the  arrangement  which  was 
to  form  one  of  the  principal  "  compromises  "  of  the 
Constitution,  American  commerce  might  achieve  for 
itself  the  opportunity  to  do  what  no  nation  had  yet 
done.  By  this  arrangement,  it  might  be  implied  in 
the  fundamental  law  of  the  new  government  about 
to  be  created  for  the  American  people,  that  the  abo- 
lition of  the  slave-trade  was  an  object  that  ought  to 
engage  the  attention  of  Christian  states.  Without 
it,  the  abolition  of  this  trade  could  not  be  secured 
within  any  time  or  by  any  means  capable  of  being 
foreseen  or  even  conjectured. 

That  the  framers  of  the  Constitution  judged  wise- 
ly ;  that  they  acted  upon  motives  which  will  enable 


Ch.  Xni.]        CHARLES  COTESWORIH  PINCKNEY.  459 

History  to  shield  them  from  all  reasonable  reproach ; 
and  that  they  brought  about  a  result  alike  honorable 
to  themselves  and  to  their  country,  —  will  not  be 
denied  by  those  who  remember  and  duly  appreciate 
the  fact,  that  the  Congress  of  the  United  States, 
under  the  Constitution,  was  the  first  legislative  body 
in  the  world  to  prohibit  the  carrying  of  slaves  to  the 
territories  of  foreign  countries.-^ 

It  is  no  inconsiderable  honor  to  the  statesmen 
situated  as  General  Pinckney  and  other  representa- 
tives of  the  Southern  States  were,  that  they  should 
have  frankly  yielded  the  prejudices,  and  what  they 
supposed  to  be  the  interests,  of  their  constituents,  to 
the  great  object  of  forming  a  more  perfect  union. 
Certamly  they  could  urge,  with  equal  if  not  greater 
force  and  truth,  the  same  arguments  for  the  continu- 
ance of  the  slave-trade,  which  for  nearly  twenty 
years  afterwards  were  contmually  heard  in  the  Brit- 
ish Parliament,  and  which  postponed  its  abolition 
until  long  after  the  people  of  England  had  become 
satisfied  both  of  its  mhumanity  and  its  impolicy. 
AVhether  General  Pinckney  was  right  or  wrong  in 
the  opmion  that  his  constituents  needed  no  national 
regulation  of  commerce,  there  can  be  no  doubt  of 
his  smcerity  when  he  expressed  it.  Nor  can  there 
be  any  doubt  that  he  was  fully  convinced  of  the 
fact,  when  he  asserted  that  they  would  not  adopt  a 

1  Denmark,  it  is  said,  abolished  take  effect  until  1804.      1  Kent's 

the  foreign  slave-trade  and  the  im-  Commentaries,    198,   note    (citing 

portation  into  her  colonies  in  1792,  Mr.  Wheaton). 
but  the  prohibitions  were   not  to 


460  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

constitution  that  should  vest  in  the  national  govern 
ment  an  immediate  power  to  prohibit  the  importa- 
tion of  slaves.  He  made,  therefore,  a  real  conces- 
sion, when  he  consented  to  the  prohibition  at  the 
end  of  twenty  years,  and  he  made  it  in  order  that 
the  union  of  the  thirteen  States  might  be  preserved 
under  a  Constitution  adequate  to  its  wants. 

For  this,  as  well  as  for  other  services,  he  is  enti- 
tled to  a  place  of  honor  among  the  great  men  who 
framed  the  charter  of  our  national  liberties ;  and 
when  we  recollect  that  by  his  action  he  armed  the 
national  government  with  a  power  to  free  the  Ameri- 
can name  from  the  disgrace  of  toleratmg  the  slave- 
trade,  before  it  was  effectually  put  down  by  any  other 
people  m  Christendom,  we  need  not  hesitate  to  rank 
him  high  among  those  who  made  great  sacrifices  for 
the  general  welfare  of  the  country  and  the  general 
good  of  mankind.-^ 


1  In  the  first  draft  of  the  Con-  1800,  prohibited  the  citizens  and 

stitution  reported  by  the  Commit-  residents  of  the  United  States  from 

tee  of  Detail,  it  was  provided  that  carrying  slaves  to  any  foreign  ter- 

the  importation  of  such  persons  as  ritory   for  the  purpose  of  traffic, 

the  States  might  think  proper  to  By  the  act  of  March  2,  1807,  the 

admit  should   not    be  prohibited.  importation    of    slaves    into    the 

When  the  committee  to  arrange,  United    States    after    January   1, 

if  possible,    certain    compromises  1808,  was  prohibited  under  severe 

between  the  Northern  and  South-  penalties.     In  1818  and  1819  these 

ern  States  was  raised,  this  provis-  penalties   were  further   increased, 

ion,  with  other  matters,  was  re-  and  in  1820,  the  offence  was  made 

ferred,  and  it  was  finally  agreed  piracy.      Although  the  discussion 

that  the  importation  should  not  be  of  the  subject  commenced  in  Eng- 

prohibited   before  the  year   1808.  land  at  about  the  same  time  (1788), 

After  the  adoption  of  the  Constitu-  it  was  nearly  twenty  years  before 

tion,   Congress,    by    the    acts    of  a   bill    could   be  carried  through 

March  22d,    1794,    and   May   10,  Parliament    for    the    abolition    of 


Cu.  Xin.]        CHAELES  COTESWORTH  PINCKNEY. 


461 


the  traffic.  Through  the  whole 
of  that  period,  and  down  to  the 
very  last,  counsel  were  repeatedly 
heard  at  the  bar,  in  behalf  of 
interested  parties,  to  oppose  the 
refornti.  The  trade  was  finally 
abolished  by  act  of  Parliament  in 
March,  1807  ;  it  was  made  a  fel- 
ony in  1810,  and  declared  to  be 
piracy  in  1824.  While,  therefore, 
the  representatives  of  a  few  of  the 
Southern  States  of  this  Union  re- 
fused to  consent  to  an  immediate 
prohibition,  they  did  consent  to  en- 
graft upon  the  Constitution  what 
was  in  effect  a  declaration  thit  the 


trade  should  be  prohibited  at  a  fixed 
period  of  time ;  and  the  trade  was 
thus  abolished  by  the  United  States, 
under  a  government  of  limited  pow- 
ers, with  respect  to  their  own  terri- 
tories, as  soon  as  it  was  abolished 
by  the  "omnipotent"  Parliament 
of  Great  Britain.  Moreover,  by 
consenting  to  give  to  the  Union 
the  power  to  regulate  commerce, 
the  Southern  States  enabled  Con- 
gress to  abolish  the  slave-trade 
with  foreign  countries  thirteen 
years  before  the  same  trade  was 
made  unlawful  to  British  vessels. 


CHAPTER   XIY. 

Wilson. 

James  Wilson,  a  signer  of  the  Declaration  of  In- 
dependence, and  one  of  the  early  Judges  of  the 
Supreme  Court  of  the  United  States,  was  one  of 
the  first  jurists  in  America  during  the  latter  part 
of  the  last  century. 

He  was  born  in  Scotland  about  the  year  1742. 
After  studying  at  Glasgow,  St.  Andrews,  and  Edin- 
burgh, he  emigrated  to  Pennsylvania  in  1766.  He 
became,  soon  after  his  arrival,  a  tutor  in  the  Phila- 
delphia College,  in  which  j)lace  he  acquired  great 
distinction  as  a  classical  scholar.  He  subsequently 
studied  the  law,  and  was  admitted  to  the  bar ;  and, 
after  practising  at  different  places,  took  up  his  resi- 
dence at  Philadelphia,  where  he  continued  to  reside 
during  the  rest  of  his  life.-^ 

For  six  years  out  of  the  twelve  that  elapsed  from 
1775  to  the  summoning  of  the  Convention  of  1787, 
he  was  a  member  of  Congress.  Concerned  in  all 
the  great  measures  of  independence,  the  establish- 
ment of  the  Confederation,  the  peace,  and  the  reve 

Encyclopsedia  Americana,  Art.  "  Wilson,  James." 


Ch.  XIV.]  WILSON.  463 

nue  system  of  1783,  he  had  acquired  a  fund  of  po- 
litical experience,  which  became  of  great  value  to 
the  country  and  to  himself  Although  a  foreigner 
by  birth,  he  was  thoroughly  American  in  all  his 
sentiments  and  feelings,  and,  at  the  time  he  entered 
the  Convention,  there  were  few  public  men  in  the 
country  who  perceived  more  clearly  the  causes  of 
the  inherent  weakness  of  the  existing  government. 
During  the  war,  he  had  always  considered  the  States, 
with  respect  to  that  war,  as  forming  one  commu- 
nity ;  ^  and  he  did  not  admit  the  idea,  that,  when  the 
Colonies  became  independent  of  Great  Britain,  they 
became  independent  of  each  other.^  From  the  Dec- 
laration of  Independence  he  deduced  the  doctrine 
that  the  States  by  which  that  measure  was  adopted 
were  independent  in  their  confederated  character, 
and  not  as  uidividual  communities.  This  rather 
subtile  distinction  may  seem  now  to  have  been  of  no 
great  practical  moment,  since  the  Confederation  had 
actually  united  the  States  as  such,  rather  than  the 
inhabitants  of  the  States.  But  it  was  one  of  the 
positions  assumed  by  those  who  desired  to  combat 
the  idea  that  the  States,  when  assembled  in  Conven- 
tion, were  restrained,  by  their  position  as  equal  and 
independent  sovereignties,  from  adopting  a  plan  of 
government  founded  on  a  representation  of  the  peo- 
ple. To  this  objection  Mr.  Wilson  repeatedly  ad- 
dressed himself,  and  his  efforts  had  great  influence 
in  causing  the  adoption  of  the  principle  by  which 

I  Madison,  Elliot.  V.  78  8  ibid.  213. 


464  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

the  people  of  the  States  became  directly  represented 
in  the  government  in  the  ratio  of  their  numbers. 
He  showed  that  this  principle  had  been  improperly 
violated  in  the  Confederation,  in  consequence  of  the 
urgent  necessity  of  forming  a  union,  and  the  impos- 
sibility at  that  time  of  forming  any  other  than  a 
union  of  the  States.  As  a  new  partition  of  the 
States  was  now  impracticable,  it  became  necessary 
for  them  to  surrender  a  portion  of  their  sovereign- 
ties, and  to  permit  their  inhabitants  to  enter  into 
direct  relations  with  a  new  federal  union.  He  point- 
ed out  the  twofold  relation  in  which  the  people 
must  henceforth  stand ;  —  in  the  one,  they  woidd  be 
citizens  of  the  general  government ;  in  the  other, 
they  wovdd  be  citizens  of  their  particular  State.  As 
both  governments  were  derived  from  the  people,  and 
both  were  designed  for  them,  both  ought  to  be  reg 
ulated  on  the  same  principles.  In  no  other  way 
could  the  larger  States  consent  to  a  new  union; 
and  if  the  smaller  States  could  not  admit  the  justice 
of  a  proportionate  representation,  it  was  in  vain  to 
expect  to  form  a  constitution  that  would  embrace 
and  satisfy  the  whole  countiy. 

This  great  idea  of  a  representative  government 
was  in  fact  the  aim  of  all  Mr.  Wilson's  exertions ; 
and  when  the  Constitution  was  formed,  he  enforced 
this  idea  in  the  Convention  of  Pennsylvania  with 
singular  power.  His  speech  in  that  body  is  one  of 
the  most  comprehensive  and  luminous  commentaries 
on  the  Constitution  that  have  come  do\vn  to  us  from 
that  period.     It  drew  from  Washington  a  high  en 


Ch.  XIV.]  WILSON.  465 

comium,  and  it  gained  the  vote  of  Pennsylvania  for 
the  new  government,  against  the  ingenious  and  cap- 
tivating objections  of  its  opponents. 

The  life  of  this  wise,  able,  and  excellent  man 
was  comparatively  short.  In  1789,  he  was  ap- 
pointed by  Washington  a  Judge  of  the  Supreme 
Court  of  the  United  States.  Wliile  on  a  circuit  in 
North  Carolina,  in  the  year  1798,  he  died  at  Eden- 
ton,  at  about  the  age  of  fifty-six.  The  character  of 
his  mind  and  the  sources  of  his  influence  will  be 
best  appreciated,  by  examining  some  of  the  more 
striking  passages  of  his  great  speech  on  the  Con- 
stitution.^ 


1  The  following  extracts  from  the  speech  referred  to  will  well  repay 
a  careful  perusal. 

"  Tacitus,  —  the  profound  politician  Tacitus, — who  lived  towards  the 
latter  end  of  those  ages  which  are  now  denominated  ancient,  who  un- 
doubtedly had  stddied  the  constitutions  of  all  the  states  and  kingdoms 
known  before  and  in  his  time,  and  who  certainly  was  qualified,  in  an 
uncommon  degree,  for  understanding  the  full  force  and  operation  of  each 
of  them,  considers,  after  all  he  had  known  and  read,  a  mixed  govern- 
ment, composed  of  the  three  simple  forms,  as  a  thing  rather  to  be  wished 
than  expected.  And  he  thinks  that,  if  such  a  government  could  even  00 
instituted,  its  duration  could  not  be  long.  One  thing  is  very  certain,— 
that  the  doctrine  of  representation  in  government  was  altogether  un- 
known to  the  ancients.  Now,  the  knowledge  and  practice  of  this  doc- 
trine is,  in  my  opinion,  essential  to  every  system  that  can  possess  the 
qualities  of  freedom,  wisdom,  and  energy. 

"  It  is  worthy  of  remark,  and  the  remark  may,  perhaps,  excite  some 
surprise,  that  representation  of  the  people  is  not,  even  at  this  day,  the 
sole  principle  of  any  government  in  Europe.  Great  Britain  boasts  — 
and  she  may  well  boast  —  of  the  improvement  she  has  made  in  politics 
by  the  admission  of  representation ;  for  the  improvement  is  important  as 
far  as  it  goes ;  but  it  by  no  means  goes  far  enough.  Is  the  executive 
power  of  Great  Britain  founded  on  representation  ?     This  is  not  pre 

VOL.  I.  59 


466  THE  FEDEEAL  CONSTITUTION.  [Book  HI. 

tended.  Before  the  Revolution,  many  of  the  kings  claimed  to  reign  by 
divine  right,  and  others  by  hereditary  right ;  and  even  at  the  Revolution, 
nothing  further  was  effected  or  attempted  than  the  recognition  of  certain 
parts  of  an  original  contract  (^Blackstonc,  233),  supposed,  at  some  former 
remote  period,  to  have  been  made  between  the  king  and  the  people.  A 
contract  seems  to  exclude,  rather  than  to  imply,  delegated  power.  The 
judges  of  Great  Britain  are  appointed  by  the  crown.  The  judicial  au- 
thority, therefore,  does  not  depend  upon  representation,  even  in  its  most 
remote  degree.  Does  representation  prevail  in  the  legislative  depart- 
ment of  the  British  government  1  Even  here  it  does  not  predominate, 
though  it  may  serve  as  a  check.  The  legislature  consists  of  three 
branches,  —  the  king,  the  lords,  and  the  commons.  Of  these,  only  the 
latter  are  supposed  by  the  constitution  to  represent  the  authority  of  the 
people.  This  short  analysis  clearly  shows  to  what  a  narrow  corner  of 
the  British  constitution  the  principle  of  representation  is  confined.  I 
believe  it  does  not  extend  farther,  if  so  far,  in  any  other  government  in 
Europe.  For  the  American  States  were  reserved  the  glory  and  the 
happiness  of  diffusing  this  vital  principle  throughout  the  constituent  parts 
of  government.  Representation  is  the  chain  of  communication  between 
the  people  and  those  to  whom  they  have  committed  the  exercise  of  the 
powers  of  government.  This  chain  may  consist  of  one  or  more  links, 
but  in  all  cases  it  should  be  sufficiently  strong  and  discernible. 

"  To  be  left  without  guide  or  precedent  was  not  the  only  difficulty  in 
which  the  Convention  wer'g  involved,  by  proposing  to  their  constituents 
a  plan  of  a  confederate  republic.  They  found  themselves  embarrassed 
with  another,  of  peculiar  delicacy  and  importance.  I  mean  that  of  draw- 
ing a  proper  line  between  the  national  government  and  the  governments 
of  the  several  States.  It  was  easy  to  discover  a  proper  and  satisfactory 
principle  on  the  subject.  Whatever  object  of  government  is  confined,  in 
its  operation  and  effects,  within  the  bounds  of  a  particular  State,  should 
be  considered  as  belonging  to  the  government  of  that  State ;  whatever 
object  of  government  extends,  in  its  operation  or  effects,  beyond  the 
bounds  of  a  particular  State,  should  be  considered  as  belonging  to  the 
government  of  the  United  States.  But  though  this  principle  be  sound 
and  satisfactory,  its  application  to  particular  cases  would  be  accompanied 
with  much  difficulty,  because,  in  its  application,  room  must  be  allowed 
for  great  discretionary  latitude  of  construction  of  the  principle.  In  order 
to  lessen  or  remove  the  difficulty  arising  from  discretionary  construction 
on  this  subject,  an  enum.eration  of  particular  instances,  in  which  the 
application  of  the  principle  ought  to  take  place,  has  been  attempted  with 
much  industry  and  care.     It  ia  only  in  mathematical  science  that  a  lino 


Ch.  XIV.J  WILSON.  467 

can  be  described  with  mathematical  precision.  But  I  flatter  myself  that 
upon  the  strictest  investigation,  the  enumeration  will  be  found  to  be  safe 
and  unexceptionable,  and  accurate,  too,  in  as  great  a  degree  as  accuracy 
can  be  expected  in  a  subject  of  this  nature.  Particulars  under  this  head 
will  be  more  properly  explained,  when  we  descend  to  the  minute  view 
of  the  enumeration  which  is  made  in  the  proposed  Constitution. 

"  After  all,  it  will  be  necessary  that,  on  a  subject  so  peculiariv  deli- 
cate as  this,  much  prudence,  much  candor,  much  moderation,  and  much 
liberality  should  be  exercised  and  displayed  both  by  the  federal  govern- 
ment and  by  the  governments  of  the  several  States.  It  is  to  be  hoped 
that  those  virtues  in  government  will  be  exercised  and  displayed,  when 
we  consider  that  the  powers  of  the  federal  government  and  those  of  the 
State  governments  are  drawn  from  sources  equally  pure.  If  a  difference 
can  be  discovered  between  them,  it  is  in  favor  of  the  federal  government, 
because  that  government  is  founded  on  a  representation  of  the  u-hole 
Union  ;  whereas  the  government  of  any  particular  State  is  founded  only 
on  the  representation  of  a  part,  inconsiderable  when  compared  with  the 
whole.  Is  it  not  more  reasonable  to  suppose  that  the  counsels  of  the 
whole  will  embrace  the  interest  of  every  part,  than  that  the  counsels  oi 
any  part  will  embrace  the  interests  of  the  whole  1 

"I  intend  not,  Sir,  by  this  description  of  the  difficulties  with  which 
the  Convention  were  surrounded,  to  magnify  their  skill  or  their  merit  in 
surmounting  them,  or  to  insinuate  that  any  predicament  in  which  the 
Convention  stood  should  prevent  the  closest  and  most  cautious  scrutiny 
into  the  performance  which  they  have  exhibited  to  their  constituents  and 
to  the  world.  My  intention  is  of  far  other  and  higher  aim,  —  to  evince, 
by  the  conflicts  and  difficulties  which  must  arise  from  the  many  and  pow- 
erful causes  which  I  have  enumerated,  that  it  is  hopeless  and  impracti- 
cable to  form  a  constitution  which,  in  every  part,  will  be  acceptable  to 
every  citizen,  or  even  to  every  government,  in  the  United  States ;  and 
that  all  which  can  be  expected  is,  to  form  such  a  constitution  as,  upon 
the  whole,  is  the  best  that  can  possibly  be  obtained.  Man  and  perfec- 
tion !  —  a  state  and  perfection  !  —  an  assemblage  of  states  and  per- 
fection !  Can  we  reasonably  expect,  however  ardently  we  may  wish, 
to  behold  the  glorious  union  ? 

"I  can  well  recollect,  though  I  believe  I  cannot  convey  to  others,  the 
impression  which,  on  many  occasions,  was  made  by  the  difficulties  which 
surrounded  and  pressed  the  Convention.  The  great  undertaking  some- 
times seemed  to  be  at  a  stand  ;  at  other  times,  its  motion  seemed  to  be 
retrograde.  At  the  conclusion,  however,  of  our  work,  many  of  tha 
members  expressed  their  astonishment  at  the  success  with  whicli  it  ter 
minated 


468  THE  FEDERAL  CONSTITUTION.  [Book  m. 

"  Having  enumerated  some  of  the  difficulties  which  the  Convention 
were  obliged  to  encounter  in  the  course  of  their  proceedings,  I  shall  next 
point  out  the  end  which  they  proposed  to  accomplish.  Our  wants,  our 
talents,  our  affections,  our  passions,  all  tell  us  that  we  were  made  for  a 
state  of  society.  But  a  state  of  society  could  not  be  supported  long  or 
happily  without  some  civil  restraint.  It  is  true,  that,  in  a  state  of  nature, 
any  one  individual  may  act  uncontrolled  by  others ;  but  it  is  equally  true, 
that,  in  such  a  state,  every  other  individual  may  act  uncontrolled  by  him. 
Amidst  this  universal  independence,  the  dissensions  and  animosities  be- 
tween interfering  members  of  the  society  would  be  numerous  and  ungov- 
ernable. The  consequence  would  be,  that  each  member,  in  such  a  natu- 
ral state,  would  enjoy  less  liberty,  and  suffer  more  interruption,  than  he 
would  in  a  regulated  society.  Hence  the  universal  introduction  of  gov- 
ernments of  some  kind  or  other  into  the  social  state.  The  liberty  of 
every  member  is  increased  by  this  introduction ;  for  each  gains  more  by 
the  limitation  of  the  freedom  of  every  other  member,  than  he  loses  by 
the  limitation  of  his  own.  The  result  is,  that  civil  government  is  neces- 
sary to  the  perfection  and  happiness  of  man.  In  forming  this  govern- 
ment, and  carrying  it  into  execution,  it  is  essential  that  the  interest  and 
authority  of  the  whole  community  should  be  binding  in  every  part  of  it. 

"  The  foregoing  principles  and  conclusions  are  generally  admitted  to 
be  just  and  sound  with  regard  to  the  nature  and  formation  of  single  gov- 
ernments, and  the  duty  of  submission  to  them.  In  eome  cases,  they  will 
apply,  with  much  propriety  and  force,  to  states  already  formed.  The 
advantages  and  necessity  of  civil  government  among  individuals  in  so- 
ciety are  not  greater  or  stronger  than,  in  some  situations  and  circum 
stances,  are  the  advantages  and  necessity  of  a  federal  government  among 
states.  A  natural  and  very  important  question  now  presents  itself,  —  Is 
such  the  situation,  are  such  the  circumstances,  of  the  United  States^ 
A  proper  answer  to  this  question  will  unfold  some  very  interesting 
truths. 

"  The  United  States  may  adopt  any  one  of  four  different  systems. 
They  may  become  consolidated  into  one  government,  in  which  the  sepa- 
rate existence  of  the  States  shall  be  entirely  absolved.  They  may  reject 
any  plan  of  union  or  association,  and  act  as  separate  and  unconnected 
States.  They  may  form  two  or  more  confederacies.  They  may  unite 
in  one  federal  republic.  Which  of  these  systems  ought  to  have  been 
formed  by  the  Convention?  To  support,  with  vigor,  a  single  govern- 
ment over  the  whole  extent  of  the  United  States,  would  demand  a  sys- 
tem of  the  most  unqualified  and  the  most  unremitted  despotism.  Such 
a  number  of  separate   States,  contiguous  in  situation,  unconnected  and 


<^"-  XIV.]  WILSON.  469 

disunited  in  government,  would  be,  at  one  time,  the  prey  of  foreign 
force,  foreign  influence,  and  foreign  intrigue  ;  at  anoth(3r,  the  victims°of 
mutual  rage,  rancor,  and  revenge.  Neither  of  these  systems  found  ad 
vocates  in  the  late  Convention.  I  presume  they  will  not  find  advocates 
in  this.  Would  it  be  proper  to  divide  the  United  States  into  two  or 
more  confederacies  ?  It  will  not  be  unadvisable  to  take  a  more  minute 
survey  of  this  subject.  Some  aspects  under  which  it  may  be  viewed  are 
far  from  being,  at  first  sight,  uninviting.  Two  or  more  confederacies 
would  be  each  more  compact  and  more  manageable  than  a  single  one 
extending  over  the  same  territory.  By  dividing  the  United  Statues  into 
two  or  more  confederacies,  the  great  collision  of  interests  apparently  or 
really  different  and  contrary,  m  the  ivhole  extent  of  their  dominion,  would 
be  broken,  and,  in  a  great  measure,  disappear,  in  the  several  parts. 
But  these  advantages,  which  are  discovered  from  certain  points  of  view, 
are  greatly  overbalanced  by  inconveniences  that  will  appear  on  a  more 
accurate  examination.  Animosities,  and  perhaps  wars,  would  arise 
from  assigning  the  extent,  the  limits,  and  the  rights  of  the  different  con- 
federacies. The  expenses  of  governing  would  be  multiplied  by  the 
number  of  federal  governments.  The  danger  resulting  from  foreign 
influence  and  mutual  dissensions  would  not,  perhaps,  be  less  great  and 
alarming  in  the  instance  of  different  confederacies,  than  in  the  instance 
of  different,  though  more  numerous,  unassociated  States. 

"These  observations,   and  many  others  that  might   be  made  on  the 
subject,  will  be  sufficient  to  evince  that  a  division  of  the  United  States 
into  a  number  of  separate  confederacies  would  probably  be  an  unsatisfac- 
tory and  an  unsuccessful  experiment.     The  remaining  system  which  the 
American  States  may  adopt,  is  a  union  of  them  under  one  confederate 
republic.     It  will  not  be  necessary  to  employ  much  time,  or  many  aro-u- 
ments,  to  show  that  this  is  the  most  eligible  system  that  can  be  proposed. 
By  adopting  this  system,  the  vigor  and  decision  of  a  wide-spreading  mon- 
archy may  be  joined  to  the  freedom  and  beneficence  of  a  contracted  re- 
public.    The  extent  of  territory,  the  diversity  of  climate  and  soil,  the 
number  and  greatness  and  connection  of  lakes  and  rivers  with  which  the 
United  States  are  intersected  and  almost  surrounded,  — all  indicate  an 
enlarged  government  to  be  fit  and  advantageous  for  them.     The  princi- 
ples and  dispositions  of  their  citizens  indicate  that,  in  this  government, 
liberty  sliall  reign  triumphant.      Such,  indeed,  have  been  the  genera! 
opinions  and  wishes  entertained  since  the  era  of  independence.     If  those 
opinions  and  wishes  are  as  well  founded  as  they  have  been  general,  the 
late  Convention  were  justified  in  proposing  to  their  constituents  owe  con- 
federate republic,  as  the  best  system  of  a  national  government  for  the 
United  States. 


470  THE   FEDEEAL   CONSTITUTION.  [Book  HI 

"  In  forming  this  system,  it  was  proper  to  give  minute  attention  to  the 
interest  of  all  the  parts ;  but  there  was  a  duty  of  still  higher  import,  — 
to  feel  and  to  show  a  predominating  regard  to  the  superior  interests  of 
the  whole.  If  this  great  principle  had  not  prevailed,  the  plan  before  us 
would  never  have  made  its  appearance.  The  same  principle  that  was  so 
necessary  in  forming  it  is  equally  necessary  in  our  deliberations,  whether 
we  should  reject  or  ratify  it. 

"  I  make  these  observations  with  a  design  to  prove  and  illustrate  this 
great  and  important  truth,  —  that,  in  our  decisions  on  the  work  of  the 
late  Convention,  we  should  not  limit  our  views  and  regards  to  the  State 
of  Pennsylvania.  The  aim  of  the  Convention  was  to  form  a  system  of 
good  and  efBcient  government,  on  the  more  extensive  scale  of  the  United 
States.  In  this,  and  in  every  other  instance,  the  work  should  be  judged 
with  the  same  spirit  with  which  it  was  performed.  A  principle  of  duty, 
as  well  as  candor,  demands  this. 

"We  have  remarked,  that  civil  government  is  necessary  to  the  per- 
fection of  society  ;  we  now  remark,  that  civil  liberty  is  necessary  to  the 
perfection  of  civil  government.  Civil  liberty  is  natural  liberty  itself, 
divested  of  only  that  part  which,  placed  in  the  government,  produces 
more  good  and  happiness  to  the  community  than  if  it  had  remained  in 
the  individual.  Hence  it  follows  that  fcivil  liberty,  while  it  resigns  a 
part  of  natural  liberty,  retains  the  free  and  generous  exercise  of  all  the 
human  faculties,  so  far  as  it  is  compatible  with  the  public  welfare. 

"  In  considering  and  developing  the  nature  and  end  of  the  system 
before  us,  it  is  necessary  to  mention  another  kind  of  liberty,  which  has 
not  yet,  as  far  as  I  know,  received  a  name.  I  shall  distinguish  it  by 
the  appellation  of  federal  liberty.  When  a  single  government  is  insti- 
tuted, the  individuals  of  which  it  is  composed  surrender  to  it  a  part  ol 
their  natural  independence,  which  they  before  enjoyed  as  men.  When 
a  confederate  republic  is  instituted,  the  communities  of  which  it  is  com- 
posed surrender  to  it  a  part  of  their  political  independence,  which  they 
before  enjoyed  as  States.  The  principles  which  directed,  in  the  former 
case,  what  part  of  the  natural  liberty  of  the  man  ought  to  be  given  up, 
and  what  part  ought  to  be  retained,  will  give  similar  directions  in  the 
latter  case.  The  States  should  resign  to  the  national  government  that 
part,  and  that  part  only,  of  their  political  liberty,  which,  placed  in  that 
government,  will  produce  more  good  to  the  whole  than  if  it  had  remained 
in  the  several  States.  While  they  resign  this  part  of  their  political 
liberty,  they  retain  the  free  and  generous  exercise  of  all  their  other  facul- 
ties, as  Slates,  so  far  as  it  is  compatible  with  the  welfare  of  the  gcneimJ 
and  superintending  confederacy. 


Ch.  XIV.]  WILSON.  471 

"  Since  States,  as  well  as  citizens,  are  represented  in  the  Constitution 
before  us,  and  form  the  objects  on  which  that  Constitution  is  proposed  to 
operate,  it  was  necessary  to  notice  and  define  federal  as  well  as  civil 
liberty. 

"  These  general  reflections  have  been  made  in  order  to  introduce,  with 
more  propriety  and  advantage,  a  practical  illustration  of  the  end  proposed 
to  be  accomplished  by  the  late  Convention. 

"  It  has  been  too  well  known,  it  has  been  too  severely  felt,  that 
the  present  Confederation  is  inadequate  to  the.  government,  and  to  the 
exigencies,  of  the  United  States.  The  great  struggle  for  Liberty  in  this 
country,  should  it  be  unsuccessful,  will  probably  be  the  last  one  which 
she  will  have  for  her  existence  and  prosperity  in  any  part  of  the  globe. 
And  it  must  be  confessed  that  this  struggle  has,  in  some  of  the  stages  of 
its  progress,  been  attended  with  symptoms  that  foreboded  no  fortunate 
issue.  To  the  iron  hand  of  Tyranny,  which  was  lifted  up  against  her, 
she  manifested,  indeed,  an  intrepid  superiority.  She  broke  in  pieces  the 
fetters  which  were  forged  for  her,  and  showed  that  she  was  unassailable 
by  force.  But  she  was  environed  with  dangers  of  another  kind,  and 
springing  from  a  very  different  source.  While  she  kept  her  eye  steadily 
fixed  on  the  efforts  of  oppression,  licentiousness  was  secretly  undermin- 
ing the  rock  on  which  she  stood. 

"  Need  I  call  to  your  remembrance  the  contrasted  scenes  of  which  w 
have  been  witnesses  1  On  the  glorious  conclusion  of  our  conflict  with 
Britain,  what  high  expectations  were  formed  concerning  us  by  others ! 
What  high  expectations  did  we  form  concerning  ourselves  !  Have  those 
expectations  been  realized?  No.  What  has  been  the  cause ?  Did  out 
citizens  lose  their  perseverance  and  magnanimity?  No.  Did  they  be 
come  insensible  of  resentment  and  indignation  at  any  high-handed  at- 
tempt that  might  have  been  made  to  injure  or  enslave  them?  No. 
What,  then,  has  been  the  cause  ?  The  truth  is,  we  dreaded  danger 
only  on  one  side  :  this  we  manfully  repelled.  But,  on  another  side, 
danger,  not  less  formidable,  but  more  insidious,  stole  in  upon  us ;  and 
our  unsuspicious  tempers  were  not  sufficiently  attentive  either  to  its 
approach  or  to  its  operations.  Those  whom  foreign  strength  could  not 
overpower  have  wellnigh  become  the  victims  of  internal  anarchy. 

"  If  we  become  a  little  more  particular,  we  shall  find  that  the  foregoing 
representation  is  by  no  means  exaggerated.  When  we  had  bafiled  all  the 
menaces  of  foreign  power,  we  neglected  to  establish  among  ourselves  a 
government  that  would  insure  domestic  vigor  and  stability.  What  was 
llie  consequence  1  The  commencement  of  peace  was  the  commencement 
of  every  disgrace  and  distress  that  could  befall  a  people  in  a  peaceful 


472  THE  FEDERAL  CONSTITUTION.  [Book  III. 

state.  Devoid  of  national  power,  we  could  not  prohibit  Jhe  extravagance 
of  our  importations,  nor  could  we  derive  a  revenue  from  their  excess. 
Devoid  of  national  importance,  we  could  not  procure  for  our  exports  a 
tolerable  sale  at  foreign  markets.  Devoid  of  national  credit,  we  saw  our 
public  securities  melt  in  the  hands  of  the  holders,  like  snow  before  the 
sun.  Devoid  of  national  dignity,  we  could  not,  in  some  instances,  per- 
form our  treaties  on  our  part;  and,  in  other  instances,  we  could  neithei 
obtain  nor  compel  the  performance  of  them  on  the  part  of  others.  De- 
void of  national  energy,  we  could  not  carry  into  execution  our  own  reso- 
lutions, decisions,  or  laws. 

"  Shall  I  become  more  particular  still?  The  tedious  detail  would 
disgust  me.  The  years  of  languor  are  now  over.  We  have  felt  the 
dishonor  with  which  we  have  been  covered  ;  we  have  seen  the  destruc- 
tion with  which  we  have  been  threatened.  We  have  penetrated  to  the 
causes  of  both,  and  when  we  have  once  discovered  them,  we  have  begun 
to  search  for  the  means  of  removing  them.  For  the  confirmation  of  these 
remarks,  I  need  not  appeal  to  an  enumeration  of  facts.  The  proceedings 
of  Congress,  and  of  the  several  States,  are  replete  with  them.  They  all 
point  out  the  weakness  and  insufficiency  as  the  cause,  and  an  efficient 
general  government  as  the  only  cure,  of  our  political  distempers. 

"  Under  these  impressions,  and  with  these  views,  was  the  late  Con- 
vention appointed  ;  and  under  these  impressions,  and  with  these  views, 
the  late  Convention  met. 

"  We  now  see  the  great  end  which  they  proposed  to  accomplish.  It 
was  to  frame,  for  the  consideration  of  their  constituents,  one  federal 
and  national  constitution,  —  a  constitution  that  would  produce  the  advan- 
tages of  good,  and  prevent  the  inconveniences  of  bad  government;  — a 
constitution  whose  beneficence  and  energy  would  pervade  the  whole 
Union,  and  bind  and  embrace  the  interests  of  every  part;  —  a  constitution 
that  would  insure  peace,  freedom,  and  happiness  to  the  States  and  people 
of  America. 

"  We  are  now  naturally  led  to  examine  the  means  by  which  they  pro- 
posed to  accomplish  this  end.  This  opens  more  particularly  to  our  view 
the  discussion  before  us.  But,  previously  to  our  entering  upon  it,  it  will 
not  be  improper  to  state  some  general  and  leading  principles  of  govern- 
ment, which  will  receive  particular  application  in  the  course  of  our  in- 
vestigations. 

"  There  necessarily  exists,  in  every  government,  a  power  from  which 
there  is  no  appeal,  and  which,  for  that  reason,  may  be  termed  supreme, 
absolute,  and  uncontrollable.  Where  does  this  power  reside  !  To  this 
question  writers  on  different  governments  will  give  different  answers 


Ch.  XIV.j  WILSON.  473 

Sir  William  Blackstone  will  tell  you,  that  in  Britain  the  power  is  lodged 
in  the  British  Parliament ;  that  the  Parliament  may  alter  the  form  of  the 
g-overnment;  and  that  its  power  is  absolute,  without  control.  The  idea 
of  a  constitution,  limiting  and  superintending  the  operations  of  legislative 
authority,  seems  not  to  have  been  accurately  understood  in  Britain. 
There  are,  at  least,  no  traces  of  practice  conformable  to  such  a  principle. 
The  British  Constitution  is  just  what  the  British  Parliament  pleases. 
When  the  Parliament  transferred  legislative  authority  to  Henry  VIII., 
the  act  transferring  could  not,  in  the  strict  acceptation  of  the  term,  be 
called  unconstitutional. 

"To  control  the  power  and  conduct  of  the  legislature  by  an  overruling 
constitution,  was  an  improvement  in  the  science  and  practice  of  govern- 
ment reserved  to  the  American  States. 

"  Perhaps  some  politician,  who  has  not  considered  with  sufScient  ac- 
curacy our  political  systems,  would  answer  that,  in  our  governments, 
the  supreme  power  was  vested  in  the  constitutions.  This  opinion  ap- 
proaches a  step  nearer  to  the  truth,  but  does  not  reach  it.  The  truth 
is,  that,  in  our  governments,  the  supreme,  absolute,  and  uncontrollable 
power  remains  in  the  people.  As  our  constitutions  are  superior  to  our 
legislatures,  so  the  people  are  superior  to  our  constitutions.  Indeed,  the 
superiority,  in  this  last  instance,  is  much  greater  ;  for  the  people  possess 
over  our  constitutions  control  in  act,  as  well  as  right. 

"The  consequence  is,  that  the  people  may  change  the  constitutions 
whenever  and  however  they  please.  This  is  a  right  of  which  no  posi- 
tive institution  can  ever  deprive  them. 

"  These  important  truths.  Sir,  are  far  from  being  merely  speculative. 
We,  at  this  moment,  speak  and  deliberate  under  their  immediate  and 
benign  influence.  To  the  operation  of  these  truths  we  are  to  ascribe 
the  scene,  hitherto  unparalleled,  which  America  now  exhibits  to  the 
world, — a  gentle,  a  peaceful,  a  voluntary,  and  a  deliberate  transition 
from  one  constitution  of  government  to  another.  In  other  parts  of  the 
world,  the  idea  of  revolutions  in  government  is,  by  a  mournful  and  an 
indissoluble  association,  connected  with  the  idea  of  wars,  and  all  the 
calamities  attendant  on  wars.  But  happy  experience  teaches  us  to  view 
such  revolutions  in  a  very  different  light,  —  to  consider  them  only  as 
progressive  steps  in  improving  the  knowledge  of  government,  and  in 
creasing  tljg)  happiness  of  society  and  mankind. 

"Oft  have  I  marked,  with  silent  pleasure  and  admiration,  the  force 
and  prevalence,  through  the  United  States,  of  the  principle  that  the  su- 
preme power  resides  in  the  people,  and  that  they  never  part  with  it.  It 
may  be  called  the  panacea  in  politics.     There  can  be  no  disorder  in  the 

VOL.  I.  60 


474  THE  FEDERiVL  CONSTITUTION.  [Book  in, 

community  but  may  here  receive  a  radical  cure.  If  the  error  be  in  the 
legislature,  it  may  be  corrected  by  the  constitution  ;  if  in  the  constitu- 
tion, it  may  be  corrected  by  the  people.  There  is  a  remedy,  therefore, 
for  every  distemper  in  government,  if  the  people  are  not  wanting  to 
themselves ;  if  they  are  wanting  to  themselves,  there  is  no  remedy. 
From  their  power,  as  we  have  seen,  there  is  no  appeal ;  of  their  error, 
there  is  no  superior  principle  of  correction. 

"  There  are  three  simple  species  of  government;  —  monarchy,  where 
the  supreme  power  is  in  a  single  person ;  aristocracy,  where  the  supreme 
power  is  in  a  select  assembly,  the  members  of  which  either  fill  up,  by 
election,  the  vacancies  in  their  own  body,  or  succeed  to  their  places  in 
it  by  inheritance,  property,  or  in  respect  of  some  personal  right  or  qualifi- 
cation ;  a  republic  or  democracy,  where  the  people  at  large  retain  the 
supreme  power,  and  act  either  collectively  or  by  representation. 

"  Each  of  these  species  of  government  has  its  advantages  and  disad- 
vantages. 

"  The  advantages  of  a  monarchy  are  strength,  despatch,  secrecy, 
unity  of  counsel.  Its  disadvantages  are  tyranny,  expense,  ignorance  of 
the  situation  and  wants  of  the  people,  insecurity,  unnecessary  wars,  evils 
attending  elections  or  successions. 

"  The  advantages  of  aristocracy  are  wisdom,  arising  from  experience 
and  education.  Its  disadvantages  are  dissensions  among  themselves, 
oppression  to  the  lower  orders. 

"  The  advantages  of  democracy  are  liberty,  equality,  cautious  and 
salutary  laws,  public  spirit,  frugality,  peace,  opportunities  of  exciting 
and  producing  abilities  of  the  best  citizens.  Its  disadvantages  are  dis- 
sensions, the  delay  and  disclosure  of  public  counsels,  the  imbecility  of 
public  measures,  retarded  by  the  necessity  of  a  numerous  consent. 

"  A  government  may  be  composed  of  two  or  more  of  the  simple  forms 
above  mentioned.  Such  is  the  British  government.  It  would  be  an 
improper  government  for  the  United  States,  because  it  is  inadequate  to 
such  an  extent  of  territory,  and  because  it  is  suited  to  an  establishment 
of  different  orders  of  men.  A  more  minute  comparison  between  some 
parts  of  the  British  Constitution,  and  some  parts  of  the  plan  before  us, 
may  perhaps  find  a  proper  place  in  a  subsequent  period  of  our  business. 

"  What  is  the  nature  and  kind  of  that  government  which  has  been  pro- 
posed for  the  United  States  by  the  late  Convention  1  In  its  ^^rinciple,  it 
is  purely  democratical.  But  that  principle  is  applied  in  different  forms, 
in  order  to  obtain  the  advantages,  and  exclude  the  inconveniences,  of  the 
simple  modes  of  government. 

"  If  we  take  an  extended  and   accurate  view  of  it,  we  shall  find  the 


Uh.  XIV.]  WILSON.  475 

streams  of  power  running  in  different  directions,  in  different  dimensions, 
and  at  different  heiglits,  —  watering,  adorning,  and  fertilizing  the  iields 
and  meadows  througli  wliich  their  courses  are  led  ;  but  if  we  trace  them, 
we  shall  discover  that  they  all  originally  flow  from  one  abundant  fountain. 

"  In  this  Constitution,  all  authority  is  derived  from  the  people . 

"  Fit  occasions  will  hereafter  offer  for  particular  remarks  on  the  differ- 
ent parts  of  the  plan." 

After  an  elaborate  examination  of  the  Constitution,  he  thus  con- 
cludes :  — 

"  A  free  government  has  often  been  compared  to  a  pyramid.  This 
allusion  is  made  with  peculiar  propriety  in  the  system  before  you  ;  it  is 
laid  on  the  broad  basis  of  the  people;  its  powers  gradually  rise,  v.hile 
they  are  confined  in  proportion  as  they  ascend,  until  they  end  in  that 
most  permanent  of  all  forms.  When  you  examine  all  its  parts,  they 
will  invariably  be  found  to  preserve  that  essential  mark  of  free  govern- 
ments,—  a  chain  of  connection  with  the  people. 

"  Such,  Sir,  is  the  nature  of  this  system  of  government  ;    and  the 
important  question  at  length  presents  itself  to  our  view,  — Shall  it  be 
ratified,  or  shall  it  be  rejected,  by  this  Convention?     In  order  to  enable 
us  still  further  to  form  a  judgment  on  this  truly  momentous  and  interest- 
ing point,  on  which  all  we  have,  or  can  have,  dear  to  us  on  earth  is 
materially  depending,  let  us  for  a  moment  consider  the  consequences  that 
will  result  from  one  or  the  other  measure.     Suppose  we  reject  this  sys- 
tem of  government ;    what  will  be  the  consequence  1     Let  the  farmer 
say,  —  he  whose  produce  remains  unasked  for  ;  nor  can  he  find  a  single 
market  for  its  consumption,  though  his  ^ds  are  blessed  with  luxuriant 
abundance.     Let  the  manufacturer,  and  let  the  mechanic,  say  ;  they  can 
feel,  and  tell  their  feelings.     Go  along  the  wharves  of  Philadelphia,  and 
observe  the  melancholy  silence  that  reigns.    I  appeal  not  to  those  who 
enjoy  places  and  abundance  under  the  present  government ;  they  may 
well  dilate  upon  the  easy  and  happy  situation  of  our  country.     Let  the 
merchants  tell  you  what  is  our  commerce  ;  let  them  say  what  has  been 
their  situation  since  the  return  of  peace,  —  an  era  which  they  might  have 
expected  would  furnish  additional  sources  to  our  trade,  and  a  continu- 
ance, and  even  an  increase,  to  their  fortunes.     Have  these  ideas  been 
.ealized  ?  or  do  they  not  lose  some  of  their  capital  in  every  adventure, 
and  continue  the  unprofitable  trade  from  year  to  year,  subsisting  under 
the  hopes  of  happier  times  under  an  efficient  general  government  ]     The 
ungainful  trade  carried  on  by  our  merchants  has  a  baneful  influence  on 
the  interests   of  the  manufacturer,  the  mechanic,   and  the  farmer ;  and 
these,  I  believe,  are  the  chief  interests  of  the  people  of  the  United  States, 


476  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

"  I  will  go  further.  Is  there  now  a  government  among  us  that  can 
do  a  single  act  that  a  national  government  ought  to  do  ?  Is  there  any 
power  of  the  United  States  that  can  cotnmmid  a  six]g\e  shilling?  This 
is  a  plain  and  a  home  question. 

"Congress  may  recommend;  they  can  do  no  more:  they  may  re- 
quire ;  hut  they  must  not  proceed  one  step  further.  If  things  are  bad 
now,  —  and  that  they  are  not  worse  is  only  owing  to  hopes  of  improve- 
ment or  change  in  the  system,  —  will  they  become  better  when  those 
hopes  are  disappointed'?  We  have  been  told,  by  honorable  gentlemen 
on  this  floor,  that  it  is  improper  to  urge  this  kind  of  argument  in  favor 
of  a  new  system  of  government,  or  against  the  old  one  :  unfortunately, 
Sir,  these  things  are  too  severely  felt  to  be  omitted ;  the  people  feel 
them ;  they  pervade  all  classes  of  citizens,  and  every  situation  from  New 
Hampshire  to  Georgia :  the  argument  of  necessity  is  the  patriot's  de- 
fence, as  well  as  the  tyrant's  plea. 

"  Is  it  likely,  Sir,  that,  if  this  system  of  government  is  rejected,  a 
better  will  be  framed  and  adopted  ?  I  will  not  expatiate  on  this  subject , 
but  I  believe  many  reasons  will  suggest  themselves  to  prove  that  such 
expectation  would  be  illusory.  If  a  better  could  be  obtained  at  a  future 
time,  is  there  any  thing  wrong  in  this?  I  go  further.  Is  there  any 
thing  wrong  that  cannot  be  amended  more  easily  by  the  mode  pointed 
out  in  the  system  itself,  than  could  be  done  by  calling  convention  after 
aonvention,  before  the  organization  of  the  government?  Let  us  now  turn 
to  the  consequences  that  will  result  if  we  assent  to  and  ratify  the  instru 
ment  before  you.  I  shall  trace  them  as  concisely  as  I  can,  because  I 
have  trespassed  already  too  ktag  on  the  patience  and  indulgence  of  the 
house. 

"I  stated,  on  a  former  occasion,  one  important  advantage;  by  adopt- 
ing this  system,  we  become  a  nation;  at  present,  we  are  not  one.  Can 
we  perform  a  single  national  act?  Can  we  do  any  thing  to  procure 
us  dignity,  or  to  preserve  peace  and  tranquillity  ?  Can  we  relieve  the 
distress  of  our  citizens  ?  Can  we  provide  for  their  welfare  or  happi- 
ness? The  powers  of  our  government  are  mere  sound.  If  we  offer  to 
treat  with  a  nation,  we  receive  this  humiliating  answer  :  '  You  cannot, 
in  propriety  of  language,  make  a  treaty,  because  you  have  no  power  to 
execute  it.'  Can  we  borrow  money?  There  are  too  many  examples 
of  unfortunate  creditors  existing,  both  on  this  and  the  other  side  of  the 
Atlantic,  to  expect  success  from  this  expedient.  But  could  we  borrow 
money,  we  cannot  command  a  fund,  to  enable  us  to  pay  either  the  princi- 
pal or  interest ;  for,  in  instances  where  our  friends  have  advanced  the 
principal,  they  have  been   obliged  to  advance  the  interest  also,  in  order 


Ch.  XIV.]  WILSON.  477 

« 

to  prevent  the  principal  from  being  annihilated  in  their  hands  by  depre- 
ciation. Can  we  raise  an  army]  The  prospect  of  a  war  is  highly  prob- 
able. The  accounts  we  receive,  by  every  vessel  from  Europe,  mention 
that  the  highest  exertions  are  making  in  the  ports  and  arsenals  of  the 
greatest  maritime  powers.  But  whatever  the  consequence  may  be,  are 
we  to  lie  supine?  We  know  we  are  unable,  under  the  Articles.of  Con- 
federation, to  exert  ourselves;  and  shall  we  continue  so,  until  a  stroke  be 
made  on  our  commerce,  or  we  see  the  debarkation  of  a  hostile  army  on 
our  unprotected  shores  ?  Who  will  guarantee  that  our  property  will  not 
be  laid  waste,  that  our  towns  will  not  be  put  under  contribution,  by  a 
small  naval  force,  and  subjected  to  all  the  horror  and  devastation  of  war? 
May  not  this  be  done  without  opposition,  at  least  effectual  opposition,  in 
the  present  situation  of  our  country?  There  may  be  safety  over  the 
Appalachian  Mountains,  but  there  can  be  none  on  our  sea-coast.  With 
what  propriety  can  we  hope  our  flag  will  be  respected,  while  we  have 
not  a  single  gun  to  fire  in  its  defence  ? 

"  Can  we  expect  to  make  internal  improvement,  or  accomplish  any  of 
those  great  national  objects  which  I  formerly  alluded  to,  when  we  cannot 
find  money  to  remove  a  single  rock  out  of  a  river? 

"  This  system,  Sir,  will  at  least  make  us  a  nation,  and  put  it  in  the 
power  of  the  Union  to  act  as  such.  We  shall  be  considered  as  such  by 
every  nation  in  the  world.  We  shall  regain  the  confidence  of  our  citi- 
zens, and  command  the  respect  of  others. 

"  As  we  shall  become  a  nation,  I  trust  that  we  shall  also  form  a  na- 
tional character,  and  that  this  character  will  be  adapted  to  the  principles 
and  genius  of  our  system  of  government :  as  yet  we  possess  none ;  our 
language,  manners,  customs,  habits,  and  dress  depend  too  much  upon 
those  of  other  countries.  Every  nation,  in  these  respects,  should  pos- 
sess originality ;  there  are  not,  on  any  part  of  the  globe,  finer  qualities 
for  forming  a  national  character,  than  those  possessed  by  the  children  ot 
America.  Activity,  perseverance,  industry,  laudable  emulation,  docility 
in  acquiring  information,  firmness  in  adversity,  and  patience  and  magna- 
nimity under  the  greatest  hardships ;  —  from  these  materials,  what  a 
respectable  national  character  may  be  raised  !  In  addition  to  this  char- 
acter, I  think  there  is  strong  reason  to  believe  that  America  may  take  the 
lead  in  literary  improvements  and  national  importance.  This  is  a  sub- 
ject which,  I  confess,  I  have  spent  much  pleasing  time  in  considering. 
That  language.  Sir,  which  shall  become  most  generally  known  in  the 
civilized  world  will  impart  great  importance  over  the  nation  tliat  shall 
use  it.  The  language  of  the  United  States  will,  in  future  times,  be 
diffused  over  a  greater  extent  of  country  than  any  other  that  we  know 


478  THE  FEDERAL  CONSTITUTION.  [Book  IH. 

The  French,  indeed,  have  made  laudable  attempts  towards  estaljlishing 
a  universal  language;  but,  beyond  the  boundaries  of  France,  even  the 
French  language  is  not  spoken  by  one  in  a  thousand.  Besides  the  free- 
dom of  our  country,  the  great  improvements  she  has  made,  and  will 
make,  in  the  science  of  government,  will  induce  the  patriots  and  literati 
of  every  nation  to  read  and  understand  our  writings  on  that  subject ; 
and  hence  it  is  not  improbable  that  she  will  take  the  lead  in  political 
knowledge. 

"  If  we  adopt  this  system  of  government,  I  think  we  may  promise 
security,  stability,  and  tranquillity  to  the  governments  of  the  different 
States.  They  would  not  be  exposed  to  the  danger  of  competition  on 
questions  of  territory,  or  any  other  that  have  heretofore  disturbed  them. 
A  tribunal  is  here  found  to  decide,  justly  and  quietly,  any  interfering 
claim ;  and  now  is  accomplished  what  the  great  mind  of  Henry  IV.  of 
France  had  in  contemplation,  —  a  system  of  government  for  large  and 
respectable  dominions,  united  and  bound  together,  in  peace,  under  a 
superintending  head,  by  which  all  their  differences  may  be  accommo- 
dated, without  the  destruction  of  the  human  race.  We  are  told  by  Sully 
that  this  was  the  favorite  pursuit  of  that  good  king  during  the  last  years 
of  his  life;  and  he  would  probably  have  carried  it  into  execution,  had 
not  the  dagger  of  an  assassin  deprived  the  world  of  his  valuable  life.  I 
have,  with  pleasing  emotion,  seen  the  wisdom  and  beneficence  of  a  less 
efficient  power  under  the  Articles  of  Confederation,  in  the  determination 
of  the  controversy  between  the  States  of  Pennsylvania  and  Connecticut ; 
but  I  have  lamented  that  the  authority  of  Congress  did  not  extend  to 
extinguish,  entirely,  the  spark  which  has  kindled  a  dangerous  flame  in 
the  district  of  Wyoming. 

"  Let  gentlemen  turn  their  attention  to  the  amazing  consequences 
which  this  principle  will  have  in  this  extended  country.  The  several 
States  cannot  war  with  each  other  ;  the  general  government  is  the  great 
arbiter  in  contentions  between  them ;  the  whole  force  of  the  Union  can 
be  called  forth  to  reduce  an  aggressor  to  reason.  What  a  happy  ex 
change  for  the  disjointed,  contentious  State  sovereignties ! 

"  The  adoption  of  this  system  will  also  secure  us  from  danger,  and 
procure  us  advantages  from  foreign  nations.  This,  in  our  situation,  is 
of  great  consequence.  We  are  still  an  inviting  object  to  one  European 
power  at  least;  and,  if  vs^e  cannot  defend  ourselves,  the  temptation  may 
become  too  alluring  to  be  resisted.  I  do  not  mean  that,  with  an  efficient 
government,  we  should  mix  with  the  commotions  of  Europe.  No,  Sir; 
we  arc  happily  removed  from  them,  and  are  not  obliged  to  throw  our- 
selves into  the  scale  with  any.     This  system  will  not  hurry  us  into  war: 


Ch  xiv.i  wn.soN.  479 

it  is  calculated  to  guard  against  it.  It  will  not  be  in  the  power  of  a 
single  man,  or  a  single  body  of  men,  to  involve  us  in  such  distress;  for 
the  important  power  of  declaring  war  is  vested  in  the  legislature  at 
large  :  this  declaration  must  be  made  with  the  concurrence  of  the  House 
of  Representatives :  from  this  circumstance  we  may  draw  a  certain  con- 
clusion, that  nothing  but  our  national  interest  can  draw  us  into  a  war. 
I  cannot  forbear,  on  this  occasion,  the  pleasure  of  mentioning  to  you  the 
sentiments  of  the  great  and  benevolent  man,  whose  works  I  have  already 
quoted  on  another  subject.  M.  Necker  has  addressed  this  country  in 
language  important  and  applicable  in  the  strictest  degree  to  its  situation 
and  to  the  present  subject.  Speaking  of  war,  and  the  greatest  caution 
that  all  nations  ought  to  use  in  order  to  avoid  its  calamities,  —  'And  you, 
rising  nation,'  says  he,  '  whom  generous  efforts  have  freed  from  the  yoke 
of  Europe !  ^et  the  universe  be  struck  with  still  greater  reverence  at  the 
sight  of  the  privileges  you  have  acquired,  by  seeing  you  continually 
employed  for  the  public  felicity  :  do  not  offer  it  as  a  sacrifice  at  the  un- 
settled shrine  of  political  ideas,  and  of  the  deceitful  combinations  of  war- 
like ambition  ;  avoid,  or  at  least  delay,  participating  in  the  passions  of 
our  hemisphere;  make  your  own  advantage  of  the  knowledge  which 
experience  alone  has  given  to  our  old  age,  and  preserve,  for  a  long  time, 
the  simplicity  of  childhood ;  in  short,  honor  human  nature,  by  showing 
that,  when  left  to  its  own  feelings,  it  is  still  capable  of  those  virtues  that 
maintain  public  order,  and  of  that  prudence  which  insures  public  tran- 
quillity.' 

"  Permit  me  to  offer  one  consideration  more,  that  ought  to  induce  our 
acceptance  of  this  system.  I  feel  myself  lost  in  the  contemplation  of  its 
magnitude.  By  adopting  this  system,  we  shall  probably  lay  a  foundation 
for  erecting  temples  of  liberty  in  every  part  of  the  earth.  It  has  been 
thought  by  many,  that  on  the  success  of  the  struggle  America  has  made 
for  freedom  will  depend  the  exertions  of  the  brave  and  enlightened  of 
other  nations.  The  advantages  resulting  from  this  system  will  not  be 
confined  to  the  United  States,  but  will  draw  from  Europe  many  worthy 
characters,  who  pant  for  the  enjoyment  of  freedom.  It  will  induce 
princes,  in  order  to  preserve  their  subjects,  to  restore  to  them  a  portion 
of  that  liberty  of  which  they  have  for  many  ages  been  deprived.  It  will 
be  subservient  to  the  great  designs  of  Providence  with  regard  to  this 
globe,  —  the  multiplication  of  mankind,  their  improvement  in  knowl- 
edge, and  their  advancement  in  happiness."  (Elliot's  Debates,  II. 
423-431,  524-529.) 


CHAPTER  XV. 

Eandolph. 

Edmund  Randolph,  a  "child  of  the  Eevolution,"-' 
was  Governor  of  Vii-ginia  at  the  tune  of  the  Federal 
Convention.  Probably  it  was  on  account  of  his 
position  as  the  chief  magistrate  of  the  State  that  he 
was,  by  the  general  consent  of  his  colleagues,  selected 
to  bring  forward  the  Virginia  plan  of  government, 
which  was  submitted  at  an  early  period  of  the  delib- 
erations, and  which  became,  after  great  modifications, 
the  nucleus  of  the  Constitution. 

At  an  early  age,  in  August,  1775,  this  gentleman 
joined  the  army  at  Cambridge,  and  was  immediately 
taken  into  "Washington's  military  family  as  an  aide- 
de-camp.^  He  served  in  this  capacity,  however,  no 
longer  than  until  the  following  November,  when  he 
was  suddenly  recalled  to  Virginia  by  the  death  of 
his  relative,  Peyton  Eandolph,  the  President  of  the 
First  Continental  Congress. 

In  1779,  he  became  a  member  of  Congress  from 
Virginia,  and  served  until  March,  1782. 

1  His  own   description  of  him-      fied     the     Constitution.       Elliot, 
self    in    a    speech    made    in    the      III.    65. 
Virginia   Convention    which    rati-  2  Washington's  Writings,  IX. 66. 


Ch.  XV.J  RANDOLPH.  481 

In  1786,  he  was  elected  Governor  of  Vii'ginia, 
succeeding  in  that  office  Patrick  Henry.  In  this 
capacity,  it  became  his  duty  to  secure  the  attend- 
ance of  Washington  upon  the  Federal  Convention. 
This  matter  he  managed  -with  great  tact  and  deli- 
cacy ;  and,  by  the  aid  of  other  friends,  he  succeeded 
in  overcomuig  the  scruples  of  the  illustidous  patriot 
then  reposing  in  the  retirement  of  Mount  Vernon. 

Governor  Randolph's  conduct  with  regard  to  the 
Constitution  might  seem  to  be  marked  by  inconsist- 
ency, if  we  were  not  able  to  explain  it  by  the  motive 
of  disinterested  patriotism  from  which  he  evidently 
acted.  He  brought  to  the  Convention  the  most 
serious  apprehensions  for  the  fate  of  the  Union. 
But  he  thought  that  the  dangers  with  which  it  was 
surrounded  might  be  averted,  by  correcting  and  en- 
larging the  Articles  of  Confederation.  When,  at 
length,  the  government  which  was  actually  framed 
was  found  to  be  a  system  containing  far  greater 
restraints  upon  the  powers  of  the  States  than  he 
believed  to  be  either  expedient  or  safe,  he  endeav- 
ored to  procure  a  vote  authorizing  amendments  to  be 
submitted  by  the  State  conventions  and  to  be  finally 
decided  on  by  another  general  convention.  This 
proposition  having  been  rejected,  he  declined  to  sign 
the  Constitution,  desmng  to  be  free  to  oppose  or 
advocate  its  adoption,  when  it  should  come  before 
his  own  State,  as  his  judgment  might  dictate. 

When  the  time  for  such  action  came,  he  saw  that 
the  rejection  of  the  Constitution  must  be  followed  by 
disunion.     He  had  wearied  himself  in  endeavoring 

VOL.    I.  61 


482  THE  FEDERAL  CONSTITUTION.  [Book  III. 

to  find  a  possibility  of  preserving  the  Union  without 
an  unconditional  ratification  by  Virginia.  To  the 
people  of  Virginia,  therefore,  he  painted  with  great 
force  and  eloquence  the  consequences  of  their  be- 
coming severed  from  the  rest  of  the  country.  Vu*- 
ginia  was  not,  he  said,  invulnerable.  She  was  ac- 
cessible to  a  foreign  enemy  by  sea,  and  through  the 
waters  of  the  Chesapeake.  Her  situation  by  land  was 
not  less  exposed.  Her  frontiers  adjoined  the  States 
of  Pennsylvania,  Maryland,  and  North  Carolma. 
With  the  first  she  had  long  had  a  disputed  bounda- 
ry, concerning  which  there  had  been  imminent  dan- 
ger of  a  war,  that  had  been  averted  with  the  greatest 
difiiculty.  With  Maryland,  there  was  an  ancient 
controversy  upon  the  navigation  of  the  Potomac, 
and  that  controversy,  if  decided  on  grounds  of  strict 
right,  would  be  determined  by  the  charter  of  Mary- 
land in  favor  of  that  State.  With  North  Carolina, 
too,  the  boundary  was  still  unsettled.  Let  them  call 
to  mind,  then,  the  history  of  every  part  of  the  world, 
where  independent  nations  bordered  in  the  same  way 
on  one  another.  Such  countries  had  ever  been  a 
perpetual  scene  of  bloodshed ;  the  inhabitants  of  one 
escaping  from  punishment  into  the  other,  —  pro- 
tection given  to  them,  —  consequent  pursuit,  vio- 
lence, robbery,  and  murder.  A  numerous  standing 
army,  that  dangerous  expedient,  could  alone  defend 
such  borders. 

On  her  Western  frontier,  Virginia  was  peculiarly 
exposed  to  the  savages,  the  natural  enemies  of  the 
white  race,  whom  foreign  gold  could  always  incite 


Ch.  XV.l  KANDOLPH.  433 

to  commit  the  most  horrible  ravages  upon  her  peo- 
ple. Her  slave  population,  bearing  a  very  large  pro- 
portion to  the  whites,-^  necessarily  weakened  her  ca- 
pacity to  defend  herself  against  such  an  enemy. 

Vkginia,  then,  must  be  defended.  Could  they 
rely  on  the  militia?  Their  militia  did  not,  at  the 
utmost,  exceed  sixty  thousand  men.  They  had  per- 
formed exploits  of  great  gallantry  during  the  late 
war,  but  no  militia  could  be  relied  on  as  the  sole 
protectors  of  any  country.  Besides,  a  part  of  them 
would  be  wanted  for  the  purposes  of  agriculture,  for 
manufactures,  and  for  the  mechanic  arts  necessary 
for  the  aid  of  the  farmer  and  the  planter.  They 
must  have  an  army ;  and  they  must  also  have  a 
navy.  But  how  w^ere  these  to  be  maintained  with- 
out money]  The  enoimous  debt  of  Virginia,  m- 
cluding  her  proportion  of  the  Continental  debts,  was 
already  beyond  her  ability  to  pay  from  any  revenue 
that  could  be  derived  from  her  present  commerce. 

In  this  state  of  things,  looking  forward  to  the  con- 
sequences of  a  dissolution  of  the  Union,  he  could  not 
but  remind  the  people  of  Virginia  of  what  took  place 
in  1781,  when  the  power  of  a  dictator  was  given  to 
the  commander-in-chief,  to  save  the  country  from 
destruction.  At  some  period,  not  very  remote,  might 
not  their  future  distress  impel  them  to  do  what  the 
Dutch  had  done,  —  throw  all  power  into  the  hands 
of  a  Stadtholder?  How  infinitely  more  wise  and 
eligible  than  this  desperate  alternative  would  be  a 

^  He  stated  the  number  of  blacks  to  be  236,000,  and  that  of  the  whites 
3iilv  352,000. 


4:84  THE  FEDERAL  CONSTITUTION.  [Book  HI. 

union  with  their  American  brethren.  "  I  have  la- 
bored," said  he,  "for  the  continuance  of  the  Union, — 
the  rock  of  our  salvation.  I  believe,  as  surely  as 
that  there  is  a  God,  that  our  safety,  our  political 
happiness  and  existence,  depend  on  the  union  of  the 
States ;  and  that,  without  this  union,  the  people  of 
this  and  the  other  States  will  undergo  the  unspeak- 
able calamities  which  discord,  faction,  turbulence, 
war,  and  bloodshed  have  produced  in  other  coun- 
tries. The  American  spirit  ought  to  be  mixed  with 
American  pride,  to  see  the  Union  magnificently  tri- 
umphant. Let  that  glorious  pride,  which  once  de- 
fied the  British  thunder,  reanimate  you  again.  Let 
it  not  be  recorded  of  Americans,  that,  after  having 
performed  the  most  gallant  exploits,  after  having 
overcome  the  most  astonishing  difficulties,  and  after 
having  gamed  the  admii-ation  of  the  world  by  their 
incomparable  valor  and  policy,  they  lost  their  ac- 
quired reputation,  their  national  consequence  and 
happmess,  by  their  o'vvn  indiscretion.  Let  no  future 
historian  inform  jposterity  that  they  wanted  msdom 
and  virtue  to  concur  in  any  regular,  efficient  govern 
ment.  Should  any  writer,  doomed  to  so  disagreeable 
a  task,  feel  the  indignation  of  an  honest  historian, 
he  would  reprehend  our  folly  with  equal  severity 
and  justice.  Catch  the  present  moment,  —  seize  it 
with  avidity,  —  for  it  may  be  lost,  never  to  be  re- 
gained !  If  the  Union  be  now  lost,  I  fear  it  will 
remain  so  for  ever.  I  believe  gentlemen  are  sincere 
in  their  opposition,  and  actuated  by  pure  motives; 
but  when  I  maturely  weigh  the  advantages  of  the 


Ch.  XV.]  EAM)OLPH.  485 

Union,  and  the  dreadful  consequences  of  its  dissolu- 
tion ;  when  I  see  safety  on  my  right,  and  destruction 
on  my  left ;  when  I  behold  respectability  and  happi- 
ness acquired  by  one  course,  but  annihilated  by  the 
other,  —  I  cannot  hesitate  in  my  decision."  -^ 

Note.  —  The  following  account  of  the  genealogy  of  Governor  Ran- 
dolph, for  which  I  am  indebted  to  one  of  his  female  descendants,  was  not 
received  in  season  to  be  incorporated  in  the  text. 

Edmund  Randolph  was  the  son  of  John  Randolph  and  grandson  of  Sir 
John  Randolph,  each  of  whom  was  Attorney-General  of  the  Colony  under 
the  royal  government.  He  was  educated  at  William  and  Mary's  College. 
Peyton  Randolph,  President  of  the  First  Continental  Congress,  was  also 
a  son  of  Sir  John  Randolph,  and  of  course  was  uncle  of  Edmund  Ran- 
dolph, to  whom  he  devised  his  estate.  Sir  John  Randolph  was  one  of 
five  or  six  sons  of  William  Randolph  of  Turkey  Island  in  Virginia,  from 
whom  all  the  Randolphs  in  Virginia  are  descended.  Of  this  William 
Randolph  little  is  known,  beyond  the  fact  that  he  was  a  large  landholder, 
and  a  nephew  of  Thomas  Randolph,  the  poet,  who  flourished  in  the  reigns 
of  James  I,  and  Charles  I.,  1605  -  1634, 

1  Debates  in  the  Virginia  Convention,  Elliot,  III,  65-84,  85,  86, 


CHAPTER  XYI. 

Conclusion  of  the  Present  Volume. 

The  limits  of  this  volume  do  not  admit  of  a  farther 
description  of  the  Framers  of  the  Constitution.  The 
nine  persons  of  whom  some  account  has  been  given 
were  the  most  important  members  of  the  Convention, 
and  those  who  exercised  the  largest  influence  upon 
its  decisions.  But  the  entire  list  embraced  other 
men  of  great  distinction  and  ability,  celebrated,  be- 
fore and  since  the  Convention,  in  that  period  of  the 
political  history  of  America  which  commenced  with 
the  Revolution  and  closed  with  the  eighteenth  cen- 
tury. Such  were  Roger  Sherman  of  Connecticut, 
Robert  Morris  of  Pennsylvania,  John  Dickinson  of 
Delaware,  John  Rutledge  and  Charles  Pinckney  of 
South  Carolina,  and  George  Mason  of  Virginia.  Of 
the  rest,  all  were  men  of  note  and  influence  in  their 
respective  States,  possessing  the  full  confidence  of  the 
people  whom  they  represented. 

The  whole  assembly  consisted  of  only  fifty-five 
members,  representing  twelve  sovereign  and  distinct 
communities.-^      That  so  small  a  body  should  have 

*  For  a  full  list  of  the  Delegates,  see  the  Appendix  to  this  volume. 


Ch.  XVI.]  CONCLUSION  OF  THE  VOLUME.  487 

contained  so  large  a  number  of  statesmen  of  pre- 
eminent ability  is  a  striking  proof  of  the  nature  of 
the  crisis  which  called  it  into  existence.  The  age 
which  had  witnessed  the  Revolution,  and  the  wants 
and  failures  that  succeeded  it,  produced  and  tramed 
these  great  men,  made  them  capable  of  the  highest 
magnanimity,  and  gave  them  the  intellectual  power 
necessary  to  sunnount  the  difficulties  that  obstructed 
the  progress  of  their  country  to  prosperity  and  re-, 
nown.  These,  with  a  few  of  their  contemporaries  at 
that  moment  engaged  in  other  spheres  of  public 
duty,  are  the  men  who  illustrate  and  adorn  it,  and 
the  loiowledge  of  their  lives  and  actions  is  of  un- 
speakable unportance  to  the  people  of  the  United 
States. 

To  that  people  is  committed  a  trust,  which  im- 
poses upon  them  a  greater  responsibility  than  now 
rests  upon  any  other   people  on  the  globe.     They 
possess  a  written  and  exact  constitution  of  govern- 
ment, framed  mth  great  wisdom  by  their  own  de- 
puted agents,  and  deliberately  adopted  and  enacted 
by  themselves.     That  Constitution  rules  over  a  coun- 
try of  vast  extent,  inhabited  by  more  than  twenty 
millions  of  prosperous  and  intelligent  freemen,  who 
constitute  one  of  the  first  nations  of  the  world.     No 
where  on  the  face  of  the  globe  has  the  experiment  of 
self-government  —  that  experiment  so  rarely  tried,  so 
rarely  successful,  and  so  important  to  the  welfare  of 
mankind  —  been  conducted  on  a  scale  so  grand  and 
unposing.     To  prevent  a  failure  so  disastrous  to  the 
best  interests  of  the  human  race  as  the  failure  of 


488  THE  FEDERAL  CONSTITUTION.  |Book  IH 

that  experiment  here  must  inevitably  become;  to 
guard  this  Constitution,  the  work  of  their  own 
hands,  from  every  kind  of  attack;  to  administer  it 
in  the  wise  spirit  in  which  it  was  framed ;  to  draw 
from  it  the  blessings  which  it  was  designed  to  con- 
fer ;  to  unfold,  to  cherish,  and  to  defend  its  great 
principles  for  the  benefit  of  a  countless  posterity ;  — 
this  is  the  high  duty  imposed  by  a  noble  ancestry 
,  and  an  overruling  Providence  upon  the  people  of 
this  Union  of  each  succeeding  generation. 

It  calls  upon  them,  with  a  remonstrance  in  whose 
tones  there  is  both  a  warning  and  a  cheering  voice, 
to  remember  that  they  have  a  country ;  to  appre- 
ciate and  fearlessly  to  survey  the  truth,  that  national 
honor  and  success,  internal  tranquillity  and  peace, 
reputation  abroad  and  safety  at  home,  can  exist,  for 
them,  only  under  the  Union  which  the  Divine  gov- 
ernment, for  its  own  all-wise  purposes,  has  made  a 
necessity  of  their  condition ;  and  to  see  that'  the  ruin 
of  self-government  in  America  must  involve  its  ruin 
for  the  whole  world.-*^ 

1  In  this  connection,  I  cannot  every  department.  The  destruc- 
avoid  a  reference  to  Dr.  Francis  tion  of  such-  a  system,  therefore, 
Lieber's  profound  and  admirable  would  be  the  destruction  of  self- 
work  "  On  Civil  Liberty  and  Self-  government  in  its  most  complete 
government."  Whoever  will  fol-  form.  No  one  can  suppose  that 
low  that  very  able  writer  in  his  the  popular  principles  in  the  Eng- 
masterly  exposition  of  the  princi-  lish  Constitution  would  continue  to 
pies  of  Anglican  liberty,  will  be-  expand,  as  they  have  done  for  the 
come  satisfied  that  the  American  last  fifty  years,  if  the  correspond- 
branch  of  it  is  more  strictly  a  sys-  ing  principles  in  America  were  to 
tem  of  "  self-government"  than  any  be  overthrown,  or  even  if  they  were 
other,  speaking  with  reference  to  to  receive  a  sensible  check, 
the  application  of  the  principle  to 


APPENDIX 


VOL.  I  62 


APPENDIX. 


IN    CONGRESS. 


Circular  Letter  of  Congress  recommending  the  Adoption 
OF  THE  Articles   of  Confederation. 

In  Congress,  Yoektown,  November  17th,  1777. 

Congress  having  agreed  upon  a  plan  of  confederacy  for  securing  the 
freedom,  sovereignty,  and  independence  of  the  United  States,  authentic 
copies  are  now  transmitted  for  the  consideration  of  the  respective  legis 
latures. 

This  business,  equally  intricate  and  important,  has  in  its  progress 
been  attended  with  uncommon  embarrassments  and  delay,  which  the 
most  anxious  solicitude  and  persevering  diligence  could  not  prevent 
To  form  a  permanent  union,  accommodated  to  the  opinion  and  wishes 
of  the  delegates  of  so  many  States  differing  in  habits,  produce,  com- 
merce, and  internal  police,  was  found  to  be  a  work  which  nothing  but 
time  and  reflection,  conspiring  with  a  disposition  to  conciliate,  could 
mature  and  accomplish. 

Hardly  is  it  to  be  expected  that  any  plan,  in  the  variety  of  provisions 
essential  to  our  union,  should  exactly  correspond  with  the  maxims  and 
political  views  of  every  particular  State.  Let  it  be  remarked,  that,  after 
the  most  careful  inquiry  and  the  fullest  information,  this  is  proposed  as 
the  best  which  could  be  adapted  to  the  circumstances  of  all,  and  as  that 
alone  which  affords  any  tolerable  prospect  of  general  satisfaction. 

Permit  us,  then,  earnestly  to  recommend  these  articles  to  the  imme- 
diate and  dispassionate  attention  of  the  legislatures  of  the  respective 
States.  Let  them  be  candidly  reviewed,  under  a  sense  of  the  difficulty 
of  combining  in  one  general  system  the  various  sentiments  and  interesU 


492       THE  FEDEEAL  CONSTITUTION. 

of  a  continent  divided  into  so  many  sovereign  and  independent  communi 
ties,  under  a  conviction  of  the  absolute  necessity  of  uniting  all  our  counsels 
and  all  our  strength  to  maintain  and  defend  our  common  liberties;  let  them 
be  examined  with  a  liberality  becoming  brethren  and  fellow-citizens  sur- 
rounded by  the  same  imminent  dangers,  contending  for  the  same  illustrious 
prize,  and  deeply  interested  in  being  for  ever  bound  and  connected  to- 
gether by  ties  the  most  intimate  and  indissoluble ;  and,  finally,  let  them 
be  adjusted  with  the  temper  and  magnanimity  cf  wise  and  patriotic  leg- 
islators, who,  while  they  are  concerned  for  the  prosperity  of  their  own 
more  immediate  circle,  are  capable  of  rising  superior  to  local  attach- 
ments, when  they  may  be  incompatible  with  the  safety,  happiness,  and 
glory  of  the  general  confederacy. 

We  have  reason  to  regret  the  time  which  has  elapsed  in  preparing 
this  plan  for  consideration  ;  with  additional  solicitude  we  look  forward 
to  that  which  must  be  necessarily  spent  before  it  can  be  ratified  Every 
motive  loudly  calls  upon  us  to  hasten  its  conclusion. 

More  than  any  other  consideration,  it  will  confound  our  foreign  ene- 
mies, defeat  the  flagitious  practices  of  the  disaffected,  strerfgthen  and 
confirm  our  friends,  support  our  public  credit,  restore  the  value  of  our 
money,  enable  us  to  maintain  our  fleets  and  armies,  and  add  weight  and 
respect  to  our  counsels  at  home  and  to  our  treaties  abroad. 

In  short,  this  salutary  measure  can  no  longer  be  deferred.  It  seems 
essential  to  our  very  existence  as  a  free  people,  and  without  it  we  may 
feel  constrained  to  bid  adieu  to  independence,  to  liberty  and  safety,  — 
blessings  which,  from  the  justice  of  our  cause  and  the  favor  of  our 
Almighty  Creator  visibly  manifested  in  our  protection,  we  have  reason 
to  expect,  if,  in  an  humble  dependence  on  his  divine  providence,  we 
strenuously  exert  the  means  which  are  placed  in  our  power. 

To  conclude,  if  the  legislature  of  any  State  shall  not  be  assembled, 
Congress  recommend  to  the  executive  authority  to  convene  it  without 
delay ;  and  to  each  respective  legislature  it  is  recommended  to  invest  its 
delegates  with  competent  powers  ultimately,  in  the  name  and  behalf  ol 
the  State,  to  subscribe  Articles  of  Confederation  and  Perpetual  Union 
of  the  United  States  ;  and  to  attend  Congress  for  that  purpose  on  or  be- 
fore the  tenth  day  if  March  next. 


APPENDIX.  49^ 


NEW    JERSEY. 

Representation  of  the  State  of  New  Jersey  on  the 
Articles  of  Confederation,  read  in  Congress,  June 
25,  1778. 

To  the  United  States  in  Congress  assembled :  The  Representation  of  the 
Legislative  Council  and  General  Assembly  of  the  State  of  New  Jersey 
showeth :  — 

That  the  Articles  of  Confederation  and  Perpetual  Union  between  the 
States  of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Provi- 
dence Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  proposed  by  the  honorable  the  Congress  of  the  said  States, 
severally  for  their  consideration,  have  been  by  us  fully  and  attentively 
considered ;  on  which  we  beg  leave  to  remark  as  follows  :  — 

1.  In  the  fifth  article,  where,  among  other  things,  the  qualifications 
of  the  delegates  from  the  several  States  are  described,  there  is  no  men- 
tion of  any  oath,  test,  or  declaration,  to  be  taken  or  made  by  them  pre- 
vious to  their  admission  to  seats  in  Congress.  It  is,  indeed,  to  be  pre- 
sumed the  respective  States  will  be  careful  that  the  delegates  they  send 
to  assist  in  managing  the  general  interest  of  the  Union  take  the  oaths  to 
the  government  from  which  they  derive  their  authority ;  but  as  the  United 
States,  collectively  considered,  have  interests,  as  well  as  each  particular 
State,  we  are  of  opinion  that  some  test  or  obligation  binding  upon  each 
delegate  while  he  continues  in  the  trust,  to  consult  and  pursue  the  for- 
mer as  well  as  the  latter,  and  particularly  to  assent  to  no  vote  or  pro- 
ceeding %vhich  may  violate  the  general  confederation,  is  necessary. 
The  laws  and  usages  of  all  civilized  nations  evince  the  propriety  of  an 
oath  on  such  occasions  ;  and  the  more  solemn  and  important  the  deposit, 
the  more  strong  and  explicit  ought  the  obligation  to  be. 

2.  By  the  sixth  and  ninth  articles,  the  regulation  of  trade  seems  to  be 
committed  to  the  several  States  within  their  separate  jurisdictions,  in 
such  a  degree  as  may  involve  many  difBculties  and  embarrassments,  and 
be  attended  with  injustice  to  some  States  in  the  Union.  We  are  of 
opinion,  that  the  sole  and  exclusive  power  of  regulating  the  trade  of  the 
United  States  with  foreign  nations  ought  to  be  clearly  vested  in  the 
Congress;    and  that  the  revenue  arising  from   all   duties   and   customs 


494        THE  FEDERAL  CONSTITUTION. 

imposed  thereon  ought  to  be  appropriated  to  the  building,  equipping, 
and  maaning  a  navy  for  the  protection  of  the  trade  and  defence  of  the 
coasts,  and  to  such  other  public  and  general  purposes  as  to  the  Congress 
shall  seem  proper,  and  for  the  common  benefit  of  the  States.  This  prin- 
ciple appears  to  us  to  be  just,  and  it  may  be  added,  that  a  great  security 
will  by  this  means  be  derived  to  the  Union  from  the  establishment  of  a 
common  and  mutual  interest. 

3.  It  is  v^'isely  provided,  in  the  sixth  article,  that  no  body  of  forces 
shall  be  kept  up  by  any  State  in  time  of  peace,  except  such  number  only 
»s,  in  the  judgment  of  the  United  States  in  Congress  assembled,  shall  be 
deemed  requisite  to  garrison  the  forts  necessary  for  the  defence  of  such 
States.  We  think  it  ought  also  to  be  provided  and  clearly  expressed, 
that  no  body  of  troops  be  kept  up  by  the  United  States  in  time  of  peace, 
3xcept  such  number  only  as  shall  be  allovi^ed  by  the  assent  of  the  nine 
States.  A  standing  army,  a  military  establishment,  and  every  append- 
age thereof,  in  time  of  peace,  is  totally  abhorrent  from  the  ideas  and 
'principles  of  this  State.  In  the  memorable  act  of  Congress  declaring 
ihe  United  Colonies  free  and  independent  States,  it  is  emphatically  men- 
tioned, as  one  of  the  causes  of  separation  from  Great  Britain,  that  the 
sovereign  thereof  had  kept  up  among  us,  in  time  of  peace,  standing  armies 
without  the  consent  of  the  legislatures.  It  is  to  be  wished  the  liberties 
and  happiness  of  the  people  may  by  the  Confederation  be  carefully  and 
explicitly  guarded  in  this  respect. 

4.  On  the  eighth  article  we  observe,  that,  as  frequent  settlements  oi 
the  quotas  for  supplies  and  aids  to  be  furnished  by  the  several  States  in 
support  of  the  general  treasury  will  be  requisite,  so  they  ought  to  be 
secured.  It  cannot  be  thought  improper,  or  unnecessary,  to  have  them 
struck  once  at  least  in  every  five  years,  and  oftener  if  circumstances  will 
allow.  The  quantity  or  value  of  real  property  in  some  States  may 
increase  much  more  rapidly  than  in  others  ;  and  therefore  the  quota 
which  is  at  one  time  just  will  at  another  be  disproportionate. 

5.  The  boundaries  and  limits  of  each  State  ought  to  be  fully  and 
finally  fixed  and  made  known.  This  we  apprehend  would  be  attended 
with  very  salutary  effects,  by  preventing  jealousies,  as  well  as  contro- 
versies, and  promoting  harmony  and  confidence  among  the  States.  It 
the  circumstances  of  the  times  would  not  admit  of  this,  previous  to  the 
proposal  of  the  Confederation  to  the  several  States,  the  establishment  ol. 
the  principles  upon  which  and  the  rule  and  mode  by  which  the  deter- 
mination might  be  conducted  at  a  time  more  convenient  and  favorable  for 
despatching  the  same  at  an  early  period,  not  exceeding  five  years  from 
the  final  ratification  ot  the  Confederation,  would  be  satisfactory. 


APPENDIX.  495 

6.  The  ninth  article  provides,  that  no  State  shall  be  deprived  of  terri- 
tory for  the  benefit  of  the  United  States.  Whether  we  are  to  understand, 
that  by  territory  is  intended  any  land,  the  property  of  which  was  here- 
tofore vested  in  the  crown  of  Great  Britain,  or  that  no  mention  of  such 
land  is  made  in  the  Confederation,  we  are  constrained  to  observe,  that 
the  present  war,  as  we  always  apprehended,  was  undertaken  for  the 
general  defence  and  interest  of  the  confederating  Colonies,  now  the 
United  States.  It  was  ever  the  confident  expectation  of  this  State,  that 
the  benefits  derived  from  a  successful  contest  were  to  be  general  and 
proportionate  ;  and  that  the  property  of  the  common  enemy,  falling  in 
consequence  of  a  prosperous  issue  of  the  war,  would  belong  to  the  United 
States,  and  be  appropriated  to  their  use.  We  are  therefore  greatly  dis- 
appointed in  finding  no  provision  made  in  the  Confederation  for  empow- 
ering the  Congress  to  dispose  of  such  property,  but  especially  the  vacant 
and  impatented  lands,  commonly  called  the  crown  lands,  for  defraying 
the  expenses  of  the  war,  and  for  such  other  public  and  general  purposes. 
The  jurisdiction  ought  in  every  instance  to  belong  to  the  respective  States 
within  the  charter  or  determined  limits  of  which  such  lands  may  be 
seated ;  but  reason  and  justice  must  decide  that  the  property  which  ex- 
isted in  the  crown  of  Great  Britain,  previous  to  the  present  Revolution, 
ought  now  to  belong  to  the  Congress,  in  trust  for  the  use  and  benefit  of 
the  United  States.  They  have  fought  and  bled  for  it  in  proportion  to 
their  respective  abilities ;  and  therefore  the  reward  ought  not  to  be  pre- 
dilectionally  distributed.  Shall  such  States  as  are  shut  out  by  situation 
from  availing  themselves  of  the  least  advantage  from  this  quarter  be  left 
to  sink  under  an  enormous  debt,  whilst  others  are  enabled,  in  a  short 
period,  to  replace  all  their  expenditures  from  the  hard  earnings  of  the 
whole  confederacy? 

7.  The  ninth  article  also  provides,  that  requisitions  for  the  land  forces 
to  be  furnished  by  the  several  States  shall  be  proportioned  to  the  number 
oi  white  inhabitants  in  each.  In  the  act  of  Independence  we  find  the  fol- 
lowing declaration  :  "  We  hold  these  truths  to  be  self-evident,  that  all 
men  are  created  equal ;  that  they  are  endued  by  their  Creator  with  certain 
unalienable  rights,  among  which  are  life,  liberty,  and  the  pursuit  of  hap- 
piness." Of  this  doctrine  it  is  not  a  very  remote  consequence,  that  all 
the  inhabitants  of  every  society,  be  the  color  of  their  complexion  what  it 
may,  are  bound  to  promote  the  interest  thereof,  according  to  their  re- 
spective abilities.  They  ought,  therefore,  to  be  brought  into  the  ac- 
count on  this  occasion.  But  admitting  necessity  or  expediency  to  justify 
the  refusal  of  liberty  in  certain  circumstances  to  persons  of  a  peculiar 
color,  we  think  it  unequal  to  reckon  upon  such  in  this  case.     Should  it 


496        THE  FEDERAL  CONSTITUTION. 

be  improper,  for  special  local  reasons,  to  admit  them  in  arms  for  the  de- 
fence  of  the  nation,  yet  we  conceive  the  proportion  of  forces  to  be  em- 
bodied ought  to  be  fixed  according  to  the  whole  number  of  inhabitants 
in  the  State,  from  whatever  class  they  may  be  raised.  If  the  whole 
number  of  inhabitants  in  a  State,  whose  inhabitants  are  all  whites 
both  those  who  are  called  into  the  field,  and  those  who  remain  to 
till  the  ground  and  labor  in  the  mechanical  arts  and  otherwise,  are 
reckoned  in  the  estimate  for  striking  the  proportion  of  forces  to  be  fur- 
nished by  that  State,  ought  even  a  part  of  the  latter  description  to  be 
left  out  in  another  1  As  it  is  of  indispensable  necessity  in  every  war, 
that  a  part  of  the  inhabitants  be  employed  or  the  uses  of  husbandry  and 
(.'tiierwise  at  home,  while  others  arc  called  into  the  field,  there  must  be 
the  same  propriety  that  the  owners  of  a  different  color  who  are  employed 
for  this  purpose  in  one  State,  while  whites  are  employed  for  the  same 
purpose  in  another,  be  reckoned  in  the  account  of  the  inhabitants  in  the 
present  instance.  • 

8.  In  order  that  the  quota  of  troops  to  be  furnished  in  each  State  on 
occasion  of  a  war  may  be  equitably  ascertained,  we  are  of  opinion  that 
the  inhabitants  of  the  several  States  ought  to  be  numbered  as  frequently 
as  the  nature  of  the  case  will  admit,  once  at  least  every  five  years.  The 
disproportioned  increase  in  the  population  of  different  States  may  render 
such  provisions  absolutely  necessary. 

9.  It  is  provided  in  the  ninth  article,  that  the  assent  of  nine  States  out 
of  the  thirteen  shall  be  necessary  to  determine  in  sundry  cases  of  the 
highest  concern.  If  this  proportion  be  proper  and  just,  it  ought  to  be 
kept  up,  should  the  States  increase  in  number,  and  a  declaration  thereof 
be  made  for  the  satisfaction  of  the  Union. 

That  we  think  it  our  indispensable  duty  to  solicit  the  attention  of  Con- 
gress to  these  considerations  and  remarks,  and  to  request  that  the  pur- 
port and  meaning  of  them  be  adopted  as  part  of  the  general  confedera- 
tion ;  by  which  means  we  apprehend  the  mutual  interest  of  all  the  States* 
will  be  belter  secured  and  promoted,  and  that  the  legislature  of  this  State 
will  then  be  justified  in  ratifying  the  same. 


APPENDIX. 


497 


Act  of  New  Jersev  acceptii.-g  the  Confederation,  passed 
November  19,  1778. 

4n  Act  to  authorize  and  empower  the  Delegates  of  the  State  of  New  Jersey 
m  Congress  to  subscribe  and  ratify  the  Articles  of  Confederation  arui 
Perpetual  Union  between  the  several  States. 

Whereas   Articles  of  Confederation  and  Perpetual  Union  between  the 
States  of  New  Hannpshire,  Massachusetts  Bay,  Rhode  Island  and  Provi- 
dence Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,   North   Carolina,   South   Carolina,   and 
Georgia    signed  in  the  Congress  of  the  said  States  by  the  Honorable 
Henry  Laurens,  Esquire,  their  President,  have  been  laid  before  the  legis- 
lature of  this  State,  to  be  ratified  by  the  same,  if  approved:  And  where^a, 
notwithstanding  the  terms  of  the  said  Articles  of  Confederation  and  Per- 
petual Union  are  considered  as  in  divers  respects  unequal  and  disadvan- 
ageous  to  this  State,  and  the  objections  to  several  of  the  said  articles 
lately  stated  and  sent  to  the  general  Congress  aforesaid  on  the  part  o^ 
this  State,  are  still  viewed  as  just  and  reasonable,  and  sundry  of  them 
as  of  the  most  essential  moment  to  the  welfare  and  happiness  of  the  good 
people  thereof:  Yet,  under  the  full  conviction  of  the  present  necessity  oi 
acceding  to  the  confederacy  proposed,  and  that  every  separate  and  de- 
tached State  interest  ought  to  be  postponed  to  the  general  good  of  the 
Union  :  And  moreover,  in  firm  reliance  that  the  candor  and  justice  of  the 
several  States  will,  in  due  time,  remove  as  far  as  possible  the  inequality 
which  now  subsists  :  —  ^        J 

Sect.  1.  Be  it  enacted  by  the  Council  and  General  Assembly  of  this 
State,  and  it  is  hereby  enacted  by  the  authority  of  the  same,  That  the 
Honorable  John  Witherspoon,  Abraham  Clark,  Nathaniel  Scudder,  and 
H^lias  Boudinot,  Esquires,  delegates  representing  this  State  in  the  Con- 
gress of  the  United  States,  or  any  one  or  more  of  them,  be  and  they  are 
hereby  authorized,  empowered,  and  directed,  on  behalf  of  this  State  to 
subscribe  and  ratify  the  said  Articles  of  Confederation  and  Perpet'ual 
Union  between  the  States  aforesaid. 

Sect.  2.  And  be  it  further  enacted  by  the  authority  aforesaid,  That 
the  said  Articles  of  Confederation  and  Perpetual  Union,  so  as  aforesaid 
subscribed  and  ratified,  shall  thenceforth  become  conclusive  as  to  ihi^ 
Dtate,  and  obligatory  thereon. 

VOL.  I.  63 


498  THE  FEDERAL  C0NSTITUTI013 


DELAWARE. 

Resolutions  passed  by  the  Council  of  the  State  of  Dei^* 
WARE,  January  23,  1779,  respecting  the  Articles  of  Con- 
federation AND  Perpetual  Union,  and  concurred  in  by 
the  House  of  Assebibly,  January  28,  1779,  previous  to 
their   passing  a   Law  to    empower  their   Delegates    to 

SIGN     AND     ratify     THE     SAID    ARTICLES     OF     CONFEDERATION 

AND  Perpetual  Union. 

Resolved,  That  the  paper  laid  before  Congress  by  the  dele 
gate  from  Delaware,  and  read,  be  filed  ;  provided,  that  it  shall 
never  be  considered  as  admitting  any  claim  by  the  same  set  up 
or  intended  to  be  set  up. 

The  paper  is  as  follows,  viz.  :  — 

In  the  Council,  Saturday,  January  23,  1779,  P.  M. 

The  Council,  having  resumed  the  consideration  of  the  committee's 
report  on  the  Articles  of  Confederation  and  Perpetual  Union,  &c.,  came 
to  the  following  resolutions  therein  :  — 

Resolved,  That  this  State  think  it  necessary  for  the  peace  and  safety 
of  the  States  to  be  included  in  the  Union,  that  a  moderate  extent  of  limits 
should  be  assigned  for  such  of  those  States  as  claim  to  the  Mississippi  or 
South  Sea ;  and  that  the  United  States  in  Congress  assembled  should 
and  ought  to  have  the  power  of  fixing  their  western  limits. 

Resolved  also,  That  this  State  consider  themselves  justly  entitled  to  a 
right,  in  common  with  the  members  of  the  Union,  to  that  extensive  traqt 
of  country  which  lies  to  the  westward  of  the  frontiers  of  the  United  Stales, 
the  property  of  which  was  not  vested  in,  or  granted  to,  individuals  at  the 
commencement  of  the  present  war  :  That  the  same  hath  been,  or  may  be, 
gained  from  the  king  of  Great  Britain,  or  the  native  Indians,  by  the 
blood  and  treasure  of  all,  and  ought  therefore  to  be  a  common  estate,  to 
be  granted  out  on  terms  beneficial  to  the  United  States. 

Resolved  also.  That  the  courts  of  law  established  within  this  State  are 
competent  for  the  purpose  of  determining  all  controversies  concerning  the 
private  right  of  soil  claimed  within  the  same  ;  and  they  now,  and  at  all 
times  hereafter,  ought  to  have  cognizance  of  all  such  controversies  :  That 
the  indeterminate  provision,  in  the  ninth  article  of  the  Confederation,  foi 
deciding  upon  controversies  that  may  arise  about  some  of  those  private 


APPENDIX.  499 

rights  of  soil,  tends  to  take  away  such  cognizance,  and  is  contrary  to  the 
declaration  of  rights  of  this  State ;  and  therefore  ought  to  receive  an 
alteration. 

The  Council,  then,  taking  into  consideration  the  strong  and  earnest 
recommendations  of  Congress  forthwith  to  accede  to  the  present  plan  of 
confederacy,  and  the  probable  disadvantages  that  may  attend  the  further 
delaying  a  ratification  thereof,  — 

Resolved,  That,  notwithstanding  the  terms  of  the  Articles  of  Confed- 
eration aforesaid  are  considered  as  in  divers  respects  unequal  and  disad- 
vantageous to  this  State,  and  the  objections  in  the  report  of  the  committee 
of  this  house,  and  the  resolves  made  thereon,  are  viewed  as  just  and  rea- 
sonable, and  of  great  moment  to  the  welfare  and  happiness  of  the  good 
people  thereof;  yet,  under  the  full  conviction  of  the  present  necessity  o^ 
acceding  to  the  confederacy  proposed,  and  in  firm  reliance  that  the  candor 
and  justice  of  the  several  States  will  in  due  time  remove  as  far  as  possible 
the  objectionable  parts  thereof,  the  delegates  appointed  to  represent  this 
State  in  Congress,  or  any  one  or  more  of  them,  be  authorized,  empow- 
ered, and  directed,  on  behalf  of  this  State,  to  subscribe  and  ratify  the 
said  Articles  of  Confederation  and  Perpetual  Union  between  the  several 
States  of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Provi- 
dence Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia ;  and  that  the  said  articles,  when  so  subscribed  and  ratified, 
shall  be  obligatory  on  this  State. 

Extract  from  the  Minutes. 

Benjamin  Vining,  Clerk  of  the  Council. 
Sent  for  concurrence. 

In  House  of  Assembly,  Thursday,  Januaiy  28,  1779. 
The  foregoing  resolutions  being  read  three  times,  and  considered,  are 
concurred  in. 

Nicholas  Van  Dyke,  Speaker. 

Thursday,  February  16,  1779. 

Mr.  M'Kean,  a  delegate  for  Delaware,  laid  before  Congress  the 
following  instrument,  empowering  the  delegates  of  that  State,  or 
any  of  them,  to  ratify  and  sign  the  Articles  of  Confederation. 

His  Excellency  Cesar  Rodney,  Esquire,  President,  Captain-General,  and 
Commander-in-Chief  of  the  Delaware  State,  to  all  to  whom  these  Pres- 
ents shall  corne,  —  Greeting-. 


500  THE  FEDERAL  CONSTITUTION. 

Know  ye,  That,  among  the  reeords  remaining  in  the  rolls  office  in  the 
Delaware  State,  there  is  a  certain  instrument  of  writing,  purporting  to 
be  an  act  of  the  General  Assembly  of  the  said  State,  which  said  act  is 
contained  in  the  words  and  tenor  here  following,  to  wit :  , 

IN    THE   YEAR   1779. 

An  Act  to  authorize  and  empower  the  Delegates  of  the  Delaware  State  to 
subscribe  and  ratify  the  Articles  of  Confederation  and  Perpetual  TJnioi 
between  the  several  States. 

Whereas  Articles  of  Confederation  and  Perpetual  Union  between  the 
States  of  New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Provi- 
dence Plantations,  Connecticut,  New  York,  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia,  North  Carolina,  South  Carolina,  and 
Georgia,  signed  in  the  general  Congress  of  the  said  States  by  the  Hon- 
orable Henry  Laurens,  Esquire,  their  then  President,  have  been  laid 
before  the  legislature  of  this  State,  to  be  ratified  by  the  same,  if  ap- 
proved :  And  whereas,  notwithstanding  the  terms  of  the  Articles  of  Con- 
federation and  Perpetual  Union  are  considered  as  in  divers  respects  un- 
equal and  disadvantageous  to  this  State  ;  and  the  objections  stated  on  the 
part  of  this  State  are  viewed  as  just  and  reasonable,  and  of  great  moment 
to  the  welfare  and  happiness  of  the  good  people  thereof;  yet,  under  the 
full  conviction  of  the  present  necessity  of  acceding  to  the  present  con- 
federacy proposed ,  and  that  the  interest  of  particular  States  ought  to  be 
postponed  to  the  general  good  of  the  Union ;  and  moreover,  in  firm  reli- 
ance that  the  candor  and  justice  of  the  several  States  will  in  due  time 
remove  as  far  as  possible  the  objectionable  parts  thereof: 

Be  it  enacted  by  the  General  Assembly  of  Delaware,  and  it  is  hereb} 
enacted  by  the  authority  of  the  same,  That  the  Honorable  John  Dickin 
son,  Nicholas  Van  Dyke,  and  Thomas  M'Kean,  Esquires,  delegates  ap- 
pointed to  represent  this  State  in  Congress,  or  any  one  or  more  of  them, 
be,  and  they  hereby  are,  authorized,  empowered,  and  directed,  on  behalt 
of  this  State,  to  subscribe  and  ratify  the  said  Articles  of  Confederation 
and  Perpetual  Union  between  the  several  States  aforesaid. 

And  be  it  further  enacted  by  the  authority  aforesaid,  That  the  said 
Articles  of  Confederation  and  Perpetual  Union,  so  as  aforesaid  subscribed 
and  ratified,  shall  thenceforth  become  obligatory  on  this  State. 

Signed  by  order  of  the  House  of  Assembly. 

Nicholas  Van  Dyke,  Speaker. 

Signed  by  order  of  the  Council. 

Thomas  Collins,  Speaker. 

Passed  at  Dover,  February  1,  1779. 


APPENDIX.  501 

All  which,  by  the  tenor  of  these  presents,  I  have  caused  to  be  exem- 
plified. 

In  testimony  whereof,  the  great  seal  of  the  Delaware  State  is  hereunto 
affixed,  at  Dover,  the  sixth  day  of  February,  in  the  year  of  our  Lord  one 
thousand  seven  hundred  and  seventy-nine,  and  in  the  third  year  of  the 
Independence  of  the  United  States  of  America. 

Cesar  Rodney.  , 
By  his  Excellency's  command. 

James  Booth,  Secretary. 


MARYLAND. 

Friday,  May  21,  1779. 

The  delegates  of  Maryland  informed  Congress  that  they  have 
received  instructions  respecting  the  Articles  of  Confederation, 
which  they  are  directed  to  lay  before  Congress,  and  have  entered 
on  their  Journals.  The  instructions,  being  read,  are  as  fol- 
lows :  — 

Instructions  of  the  General  Assembly  of  Maryland,  to  George  Plater, 
William  Paca,  William  Carmichael,  John  Henry,  James  Forbes,  ana 
Daniel  qf  St.  Thomas  Jenifer,  Esquires. 

Gentlemen,  — 
Having  conferred  upon  you  a  trust  of  the  highest  nature,  it  is  evident 
we  place  great  confidence  in  your  integrity,  abilities,  and  zeal  to  promote 
the  general  welfare  of  the  United  States,  and  the  particular  interest  of 
this  State,  where  the  latter  is  not  incompatible  with  the  former;  but  to 
add  greatt-  eight  to  your  proceedings  in  Congress,  and  take  away  all 
suspicion  thai  ihe  opinions  you  there  deliver  and  the  votes  you  give 
may  be  the  mere  opinions  of  individuals,  and  not  resulting  from  your 
knowledge  of  the  sense  and  deliberate  judgment  of  the  State  you  repre- 
sent, we  think  it  our  duty  to  instruct  as  followeth  on  the  subject  of  the 
Confederation,  —  a  subject  in  which,  unfortunately,  a  supposed  differenca 


502        THE  FEDERAL  CONSTITUTION. 

of  interest  has  produced  an  almost  equal  division  of  sentiments  among 
the  several  States  composing  the  Union.  We  say  a  supposed  difference 
of  interests ;  for  if  local  attachments  and  prejudices,  and  the  avarice  and 
ambition  of  individuals,  would  give  way  to  the  dictates  of  a  sound  policy, 
founded  on  the  principles  of  justice,  (and  no  other  policy  but  what  is 
founded  on  those  immutable  principles  deserves  to  be  called  sound,)  we 
flatter  ourselves  this  apparent  diversity  of  interests  would  soon  vanish, 
and  all  the  States  would  confederate  on  terms  mutually  advantageous  to 
all  ;  for  they  would  then  perceive  that  no  other  confederation  than  one 
so  formed  can  be  lasting.  Although  the  pressure  of  immediate  calami- 
ties, the  dread  of  their  continuance  from  the  appearance  of  disunion,  and 
some  other  peculiar  circumstances,  may  have  induced  some  States  to 
accede  to  the  present  Confederation,  contrary  to  their  own  interests  and 
judgments,  it  requires  no  great  share  of  foresight  to  predict,  that,  when 
those  causes  cease  to  operate,  the  States  which  have  thus  acceded  to  the 
Confederation  will  consider  it  as  no  longer  binding,  and  will  eagerly 
embrace  the  first  occasion  of  asserting  their  just  rights,  and  securing 
their  independence.  Is  it  possible  that  those  States  who  are  ambitiously 
grasping  at  territories  to  which,  in  our  judgment,  they  have  not  the  least 
shadow  of  exclusive  right,  will  use  with  greater  moderation  the  increase 
of  wealth  and  power  derived  from  those  territories,  when  acquired,  than 
what  they  have  displayed  in  their  endeavors  to  acquire  them  ?  We  think 
not.  We  are  convinced  the  same  spirit  which  hath  prompted  them  to 
insist  on  a  claim  so  extravagant,  so  repugnant  to  every  principle  of  jus- 
tice, so  incompatible  with  the  general  welfare  of  all  the  States,  will 
urge  them  on  to  add  oppression  to  injustice.  If  they  should  not  be  in- 
cited by  a  superiority  of  wealth  and  strength  to  oppress  by  open  force 
their  less  wealthy  and  less  powerful  neighbors,  yet  depopulation,  and 
consequently  the  impoverishment,  of  those  States  will  necessarily  follow, 
which,  by  an  unfair  construction  of  the  Confederation,  may  be  stripped 
of  a  common  interest,  and  the  common  benefits  derivable  from  the  West- 
ern country.  Suppose,  for  instance,  Virginia  indisputably  possessed  ot 
the  extensive  and  fertile  country  to  which  she  has  set  up  a  claim,  what 
would  be  the  probable  consequences  to  Maryland  of  such  an  undisturbed 
and  undisputed  possession  ?     They  cannot  escape  the  least  discerning. 

Virginia,  by  selling  on  the  most  moderate  terms  a  small  proportion  ot 
the  lands  in  question,  would  draw  into  her  treasury  vast  sums  of  money ; 
and  in  proportion  to  the  sums  arising  from  such  sales  would  be  enabled 
to  lessen  her  taxes.  Lands  comparatively  cheap,  and  taxes  compara- 
tively low,  with  the  lands  and  taxes  of  an  adjacent  State,  would  quickly 
drain  the  State  thus  disadvantageously  circumstanced  of  its  most  useful 


APPENDIX.  503 

inhabitants;  its  wealth  and  its  consequence  in  the  scale  cf  the  confed- 
erated States  would  sink  of  course.  A  claim  so  injurious  to  more  than 
one  half,  if  not  to  the  whole,  of  the  United  States,  ought  to  be  supported 
by  the  clearest  evidence  of  the  right.  Yet  what  evidences  of  that  right 
have  been  produced  1  What  arguments  alleged  in  support  either  of  the 
evidences  or  the  right?  None  that  we  have  heard  of  deserving  a  serious 
refutation. 

It  has  been  said,  that  some  of  the  delegates  of  a  neighboring  State 
nave  declared  their  opinion  of  the  practicability  of  governing  the  exten- 
sive dominion  claimed  by  that  State.  Hence  also  the  necessity  was 
admitted  of  dividing  its  territory,  and  erecting  a  new  State  under  the 
auspices  and  direction  of  the  elder,  from  whom  no  doubt  it  would  receive 
its  form  of  government,  to  whom  it  would  be  bound  by  some  alliance  or 
confederacy,  and  by  whose  councils  it  would  be  influenced.  Such  a 
measure,  if  ever  attempted,  would  certainly  be  opposed  by  the  other 
States  as  inconsistent  with  the  letter  and  spirit  of  the  proposed  Confed- 
eration. Should  it  take  place  by  establishing  a  sub-confederacy,  impe- 
rium  in  imperio,  the  State  possessed  of  this  extensive  dominion  must 
then  either  submit  to  all  the  inconveniences  of  an  overgrown  and  un- 
wieldy government,  or  suffer  the  authority  of  Congress  to  interpose  at 
a  future  time,  and  to  lop  off  a  part  of  its  territory,  to  be  erected  into  a 
new  and  free  State,  and  admitted  into  a  confederation  on  such  conditions 
as  shall  be  settled  by  nine  States.  If  it  is  necessary  for  the  happiness 
and  tranquillity  of  a  State  thus  overgrown,  that  Congress  should  here- 
after interfere  and  divide  its  territory,  why  is  the  claim  to  that  territory 
now  made,  and  so  pertinaciously  insisted  on  1  We  can  suggest  to  our- 
selves but  two  motives ;  either  the  declaration  of  relinquishing  at  some 
future  period  a  proportion  of  the  country  now  contended  for  was  made 
to  lull  suspicion  asleep,  and  to  cover  the  designs  of  a  secret  ambition,  or, 
if  the  thought  was  seriously  entertained,  the  lands  are  now  claimed  to 
reap  an  immediate  profit  from  the  sale.  We  are  convinced,  policy  and 
justice  require,  that  a  country  unsettled  at  the  commencement  of  this 
war,  claimed  by  the  British  crown,  and  ceded  to  it  by  the  treaty  of  Paris, 
if  wrested  from  the  common  enemy  by  the  blood  and  treasure  of  the 
thirteen  States,  should  be  considered  as  a  common  property,  subject  to 
be  parcelled  out  by  Congress  into  free,  convenient,  and  independent  gov- 
ernments, in  such  manner  and  at  such  times  as  the  wisdom  of  that  assem- 
bly shall  hereafter  direct. 

Thus  convinced,  we  should  betray  the  trust  reposed  in  us  by  our  con- 
stituents, were  we  to  authorize  you  to  ratify,  on  their  behalf,  the  Con- 
federation, unless  it  be  further  explained.     We  have  coolly  and  dispas- 


504  THE  FEDERAL   CONSTITUTION. 

sionately  considered  the  subject ;  we  have  weighed  probable  inconven- 
iences and  hardships  against  the  sacrifice  of  just  and  essential  rights ; 
and  do  instruct  you  not  to  agree  to  the  Confederation,  unless  an  article  or 
articles  be  added  thereto  in  conformity  with  our  declaration.  Should  we 
succeed  in  obtaining  such  article  or  articles,  then  you  are  hereby  fully 
empowered  to  accede  to  the  Confederation. 

That  these  our  sentiments  respecting  our  Confederation  may  be  more 
publicly  known,  and  more  explicitly  and  concisely  declared,  we  have 
drawn  up  the  annexed  declaration,  which  we  instruct  you  to  lay  before 
Congress,  to  have  it  printed,  and  to  deliver  to  each  of  the  delegates  of 
the  other  States  in  Congress  assembled  copies  thereof,  signed  by  your- 
selves, or  by  such  of  you  as  may  be  present  at  the  time  of  delivery  ;  to 
the  intent  and  purpose  that  the  copies  aforesaid  may  be  communicated  to 
our  brethren  of  the  United  States,  and  the  contents  of  the  said  declara 
tion  taken  into  their  serious  and  candid  consideration. 

Also  we  desire  and  instruct  you  to  move,  at  a  proper  time,  that  these 
instructions  be  read  to  Congress  by  their  Secretary,  and  entered  on  the 
Journals  of  Congress. 

We  have  spoken  with  freedom,  as  became  freemen  ;  and  we  sincerely 
wish  that  these  our  representations  may  make  such  an  impression  on  that 
assembly  as  to  induce  them  to  make  such  addition  to  the  Articles  of 
Confederation  as  may  bring  about  a  permanent  union. 

A  true  copy  from  the  proceeding  of  December  15,  1778. 

Test,  T.  DucKETT,  C.  H.  B. 


IN    CONGRESS. 

Saturday,  April  1,  1780. 


The  committee  to  whom  was  referred  the  act  of  the  legislature 
of  the  State  of  New  York,  entitled,  "  An  Act  to  facilitate  the 
completion  of  the  Articles  of  Confederation  and  Perpetual  Union 
among  the  United  States  of  America,"  report,  — 

That,  having  met  on  the  business,  but  not  being  able  to  agree 
to  any  resolution  thereon,  desire  to  be  discharged  ;  which  act  is 
in  the  words  following,  viz. :  — 


APPENDIX.  505 

An  Act  to  Jacilifate  the  Completion  of  the  Articles  of  Confederation  ana 
Perpetual  Union  among  the  United  Slates  of  America. 

Whereas  nothing  under  Divine  Providence  can  more  effectually  con 
tribute  to  the  tranquillity  and  safety  of  the  United  States  of  America 
than  a  federal  alliance,  on  such  liberal  principles  as  will  give  satisfaction 
to  its.  respective  members :  And  whereas  the  Articles  of  Confederation 
and  Perpetual  Union  recommended  by  the  honorable  the  Congress  of  the 
United  States  of  America  have  not  proved  acceptable  to  all  the  States,  it 
having  been  conceived  that  a  portion  of  the  waste  and  uncultivated  terri- 
tory, within  the  limits  or  claim  of  certain  States,  ought  to  be  appropri 
ated  as  a  common  fund  for  the  expenses  of  the  war  :  And  the  people  of 
the  State  of  New  York  being  on  all  occasions  disposed  to  manifest  their 
regard  for  their  sister  States,  and  their  earnest  desire  to  promote  the 
general  interest  and  security ;  and  more  especially  to  accelerate  the  fed- 
eral alliance,  by  removing,  as  far  as  it  depends  upon  them,  the  before- 
mentioned  impediment  to  its  final  accomplishment : 

Be  it  therefore  enacted,  by  the  people  of  the  State  of  New  York,  rep 
resented  in  Senate  and  Assembly,  and  it  is  hereby  enacted  by  the  author 
ity  of  the  same,  That  it  shall  and  may  be  lawful  to  and  for  the  delegates 
of  this  State,  in  the  honorable  Congress  of  the  United  States  of  America, 
or  the  major  part  of  such  of  them  as  shall  be  assembled  in  Congress,  and 
they  the  said  delegates,  or  a  major  part  of  them,  so  assembled,  are  hereby 
fully  authorized  and  empowered,  for  and  on  behalf  of  this  State,  and  by 
proper  and  authentic  acts  or  instruments,  to  limit  and  restrict  the  bounda- 
ries of  this  State,  in  the  western  parts  thereof,  by  such  line  or  lines,  and 
in  such  manner  and  form,  as  they  shall  judge  to  be  expedient,  either 
with  respect  to  the  jurisdiction  as  well  as  the  right  or  preemption  of  soil, 
or  reserving  the  jurisdiction  in  part,  or  in  the  whole,  over  the  lands 
which  may  be  ceded,  or  relinquished,  with  respect  only  to  the  right  or 
preemption  of  the  soil. 

And  be  it  further  enacted  by  the  authority  aforesaid.  That  the  territo- 
ry which  may  be  ceded  or  relinquished  by  virtue  of  this  act,  either  with 
respect  to  the  jurisdiction  as  well  as  the  right  or  preemption  of  soil,  or 
the  right  or  preemption  of  soil  only,  shall  be  and  enure  for  the  use  and 
benefit  of  such  of  the  United  States  as  shall  become  members  of  the  fed- 
eral alliance  of  the  said  States,  and  for  no  other  use  or  purpose  whatever. 
.  And  be  it  further  enacted  by  the  authority  aforesaid.  That  all  the 
lands  to  be  ceded  and  relinquished  by  virtue  of  this  act,  for  the  benefit 
of  the  United  States,  with  respect  to  property,  but  which  shall  neverthe- 
less remain  under  the  jurisdiction  of  this  State,  shall  be  disposed  of  and 

VOL.  I.  64 


506  THE  FEDERAL  CONSTITUTION. 

appropriated  in  such  manner  only  as  the  Congress  of  the  said  Stales 
shall  direct ;  and  that  a  warrant  under  the  authority  of  Congress  for  sur- 
veying and  laying  out  any  part  thereof  shall  entitle  the  party  in  whose 
favor  it  shall  issue  to  cause  the  same  to  be  surveyed  and  laid  out  and  re- 
turned according  to  the  directions  of  such  warrant ;  and  thereupon  letters 
patent  under  the  great  seal  of  this  State  shall  pass  to  the  grantee  for  the 
estate  specified  in  the  said  warrant ;  for  which  no  other  fee  or  reward 
shall  be  demanded  or  received  than  such  as  shall  be  allowed  by  Congress. 
Provided  always,  and  be  it  further  enacted  by  the  authority  aforesaid, 
That  the  trust  reposed  by  virtue  of  this  act  shall  not  be  executed  by  the 
delegates  of  this  State,  unless  at  least  three  of  the  said  delegates  shall 
be  present  in  Congress. 

Slate  of  New  York,  ss. 

I  do  hereby  certify  that  the  aforegoing  is  a  true  copy  of  the  original 
act,  passed  the  19th  of  February,  1780,  and  lodged  in  the  Secretary's 
office. 

Robert  Harpur,  Z)'?/  Sec'y  State. 


Wednesday,  September  6,  1780. 

Congress  took  into  consideration  the  report  of  the  committee 
to  whom  were  referred  the  instructions  of  the  General  Assembly 
of  Maryland  to  their  delegates  in  Congress  respecting  the  Arti- 
cles of  Confederation,  and  the  declaration  therein  referred  to  ; 
the  act  of  the  legislature  of  New  York  on  the  same  subject ; 
and  the  remonstrance  of  the  General  Assembly  of  Virginia, 
which  report  was  agreed  to,  and  is  in  the  words  following  :  — 

That,  having  duly  considered  the  several  matters  to  them  submitted, 
they  conceive  it  unnecessary  to  examine  into  the  merits  or  policy  of  the 
instructions  or  declaration  of  the  General  Assembly  of  Maryland,  or  of 
the  remonstrances  of  the  General  Assembly  of  Virginia,  as  they  involve 
questions  a  discussion  of  which  was  declined,  on  mature  consideration, 
when  the  Articles  of  Confederation  were  debated;  nor,  in  the  opinion  of 
the  committee,  can  such  questions  be  now  revived  with  any  prospect 
of  conciliation  :  That  it  appears  more  advisable  to  press  upon  these 
States  wliich   can  remove  the  embarrassments  respecting  the  Western 


APPENDIX.  507 

country  a  liberal  surrender  of  a  portion  of  their  territorial  claims,  since 
iiey  cannot  be  preserved  entire  without  endangering  the  stability  of  the 
general  confederacy  ;  to  remind  them  how  indispensably  necessary  it  is 
to  establish  the  Federal  Union  on  a  fixed  and  permanent  basis,  and  on 
principles  acceptable  to  all  its  respective  members ;  how  essential  to 
public  credit  and  confidence,  to  the  support  of  our  army,  to  the  vigor  ol 
our  councils,  and  success  of  our  measures,  to  our  tranquillity  at  home, 
our  reputation  abroad,  to  our  very  existence  as  a  free,  sovereign,  and 
independent  people  ;  that  we  are  fully  persuaded  the  wisdom  of  the  re- 
spective legislatures  will  lead  them  to  a  full  and  impartial  consideration 
of  a  subject  so  interesting  to  the  United  States,  and  so  necessary  to  the 
happy  establishment  of  the  Federal  Union ;  that  they  are  confirmed  in 
these  expectations  by  a  view  of  the  before-mentioned  act  of  the  legisla- 
ture of  New  York,  submitted  to  their  consideration  ;  that  this  act  is  ex- 
pressly calculated  to  accelerate  the  federal  alliance,  by  removing,  as  far  as 
depends  on  that  State,  the  impediment  arising  from  the  Western  country, 
and  for  that  purpose  to  yield  up  a  portion  of  territorial  claim  for  the  gen- 
eral benefit. 

Whereupon, 

Resolved,  That  copies  of  the  several  papers  referred  to  the  committee 
oe  transmitted,  with  a  copy  of  the  report,  to  the  legislatures  of  the  sev- 
eral States ;  and  that  it  be  earnestly  recommended  to  these  States  who 
have  claims  to  the  Western  country  to  pass  such  laws,  and  give  their 
delegates  in  Congress  such  powers,  as  may  effectually  remove  the  only 
obstacle  to  a  final  ratification  of  the  Articles  of  Confederation  :  and  thai 
the  legislature  of  Maryland  be  earnestly  requested  to.  authorize  their  dele- 
gates in  Congress  to  subscribe  the  said  articles. 


MARYLAND. 

Monday,  February  12,  1781. 

The  delegates  of  Maryland  laid  before  Congress  a  certified 
copy  of  an  act  of  the  legislature  of  that  State,  which  was  read  as 
follows :  — 


508        THE  FEDEKAL  CONSTITUTION, 

An  Act  to  empower  the  Delegates  of  this  State  in  Congress  to  subscribe  and 
ratify  the  Articles  of  Confederation. 

Whereas  it  hath  been  said  that  the  common  enemy  is  encouraged,  by 
this  State  not  acceding  to  the  Confederation,  to  hope  that  the  union  of 
the  sister  States  maybe  dissolved;  and  therefore  prosecute  the  war  in 
expectation  of  an  event  so  disgraceful  to  America ;  and  our  friends 
and  illustrious  ally  are  impressed  with  an  idea,  that  the  common  cause 
would  be  promoted  by  our  formally  acceding  to  the  Confederation  :  This 
General  Assembly,  conscious  that  this  State  hath  from  the  commencement 
of  the  war  strenuously  exerted  herself  in  the  common  cause,  and  fully 
satisfied  that,  if  no  formalconfederation  was  to  take  place,  it  is  the  fixed 
determination  of  this  State  to  continue  her  exertions  to  the  utmost,  agree- 
able to  the  faith  pledged  in  the  union,  —  from  an  earnest  desire  to  con- 
ciliate the  affections  of  the  sister  States,  to  convince  all  the  world  of  our 
unalterable  resolution  to  support  the  independence  of  the  United  States, 
and  the  alliance  with  his  most  Christian  Majesty ;  and  to  destroy  for  ever 
any  apprehension  of  our  friends,  or  hope  in  our  enemies,  of  this  State 
being  again  united  to  Great  Britain  : 

Be  it  enacted  by  the  General  Assembly  of  Maryland,  That  the  delegates 
of  this  State  in  Congress,  or  any  two  or  three  of  them,  shall  be,  and  are 
hereby,  empowered  and  required,  on  behalf  of  this  State,  to  subscribe  the 
Articles  of  Confederation  and  Perpetual  Union  between  the  States  of 
New  Hampshire,  Massachusetts  Bay,  Rhode  Island  and  Providence  Plan- 
tations, Connecticut,  New  York,  New  Jersey,  Pennsylvania,  Delaware, 
Maryland,  Virginia,  North  Carolina,  South  Carolina,  and  Georgia,  signed 
in  the  general  Congress  of  the  said  States  by  the  Honorable  Henry  Lau- 
rens, Esquire,  their  then  President,  and  laid  before  the  legislature  of  this 
State  to  b^  ratified,  if  approved ;  and  that  the  said  Articles  of  Confedera- 
tion and  Perpetual  Union,  so  as  aforesaid  subscribed,  shall  thenceforth  be 
ratified  and  become  conclusive  as  to  this  State,  and  obligatory  thereon. 

And  it  is  hereby  declared,  that,  by  acceding  to  the  said  Confederation, 
this  State  doth  not  relinquish,  or  intend  to  relinquish,  any  right  or  inter- 
est she  hath  with  the  other  united  or  confederated  States  to  the  back 
country ;  but  claims  the  same  as  fully  as  was  done  by  the  legislature  of 
this  State  in  their  declaration  which  stands  entered  on  the  journals  of 
Congress  :  this  State  relying  on  the  justice  of  the  several  States  hereafter, 
as  to  the  said  claim  made  by  this  State. 

And  it  is  further  declared.  That  no  article  in  the  said  Confedera- 
tion can  or  ought  to  bind  this  or  any  other  State  to  guarantee  any  ex- 
dusive  claim  of  any  particular  State   to  the  soil  of  the  said  back  lands, 


APPENDIX.  509 

or  any  such  claim  of  jurisdiction  over  the  said  lands,  or  the  inhabitants 
thereof. 

By  the  House  of  Delegates,  January  30,  1781. 
Read  and  assented  to. 

By  order, 

F.  Greex,  Clerk 
By  the  Senate,  February  2,  1781. 
Read  and  assented  to. 

By  order, 

Jas.  Maccubbin,  Clerk. 
Thomas  Lee.  [L.  S.] 


ARTICLES    OF    CONFEDERATION    AND 
PERPETUAL   UNION 

Between  the  States  of  New  Hampshire,  Massachusei  rs 
Bay,  Rhode  Island  and  Providence  Plantations,  Con- 
necticut, New  York,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  North  Carolina,  South  Caro- 
lina, AND  Georgia. 

Art.  1.  The  style  of  this  Confederacy  shall  be  "  The  United  States 
of  America." 

x\rt.  2.  Each  State  retains  its  sovereignty,  freedom,  and  independence, 
and  every  power,  jurisdiction,  and  right  which  is  not  by  this  Confedera- 
tion expressly  delegated  to  the  United  States  in  Congress  assembled. 

Art.  3.  The  said  States  hereby  severally  enter  into  a  firm  league  of 
friendship  with  each  other  for  their  common  defence,  the  security  of  their 
liberties,  and  their  mutual  and  general  welfare ;  binding  themselves  to 
assist  each  other  against  all  force  offered  to  or  attacks  made  upon  them 
on  account  of  religion,  sovereignty,  trade,  or  any  other  pretence  what- 
ever. 

Art.  4.  The  better  to  secure  and  perpetuate  mutual  friendship  and 
intercourse  among  the  people  of  the  different  States  in  this  union,  the 
free  inhabitants  of  each  of  these  States  (paupers,  vagabonds,  and  fugi- 
tives from  justice  excepted)  shall  be  entitled  to  all  privileges  and  immu 


510  THE  FEDEEAL  CONSTITUTION. 

nitics  of  iree  citizens  in  the  several  States  ;  and  the  people  of  each  State 
shall  have  free  ingress  and  regress  to  and  from  any  other  State,  and  shall 
enjoy  therein  all  the  privileges  of  trade  and  commerce,  subject  to  the  same 
Quties,  impositions,  and  restrictions  as  the  inhabitants  thereof  respec- 
tively, provided  that  such  restriction  shall  not  extend  so  far  as  to  prevent 
the  removal  of  property  imported  into  any  State  to  any  other  State,  of 
which  the  owner  is  an  inhabitant ;  provided  also,  that  no  imposition,  du- 
ties, or  restriction  shall  be  laid  by  any  State  on  the  property  of  the  United 
States,  or  either  of  them. 

If  any  person  guilty  of  or  charged  with  treason,  felony,  or  other  high 
misdemeanor  in  any  State,  shall  flee  from  justice  and  be  found  in  any  of 
the  United  States,  he  shall,  upon  demand  of  the  Governor  or  executive 
power  of  the  State  from  which  he  fled,  be  delivered  up  and  removed  to 
the  State  having  jurisdiction  of  his  oflTence. 

Full  faith  and  credit  shall  be  given  in  each  of  these  States  to  the  rec 
ords,  acts,  and  judicial  proceedings  of  the  courts  and  magistrates  of  every 
other  State. 

Art.  5.  For  the  more  convenient  management  of  the  general  interests 
of  the  United  States,  delegates  shall  be  annually  appointed,  in  such  man- 
ner as  the  legislature  of  each  State  shall  direct,  to  meet  in  Congress  on 
the  first  Monday  in  November,  in  every  year,  with  a  power  reserved  to 
each  State  to  recall  its  delegates,  or  any  of  them,  at  any  time  within  the 
year,  and  to  send  others  in  their  stead,  for  the  remainder  of  the  year. 

No  State  shall  be  represented  in  Congress  by  less  than  two  nor  by 
more  than  seven  members  ;  and  no  person  shall  be  capable  of  being  a 
delegate  for  more  than  three  years  in  any  term  of  six  years ;  nor  shall 
any  person,  being  a  delegate,  be  capable  of  holding  any  office  under  the 
United  States,  for  which  he,  or  any  other  for  his  benefit,  receives  any 
salary,  fees,  or  emolument  of  any  kind. 

Each  State  shall  maintain  its  own  delegates  in  any  meeting  of  the 
States,  and  while  they  act  as  members  of  the  committee  of  the  States. 

In  determining  questions  in  the  United  States  in  Congress  assembled, 
each  State  shall  have  one  vote. 

Freedom  of  speech  and  debate  in  Congress  shall  not  be  impeached  or 
questioned  in  any  court  or  place  out  of  Congress;  and  the  members  of 
Congress  shall  be  protected  in  their  persons  from  arrests  and  imprison- 
ments, during  the  time  of  their  going  to  and  from  and  attendance  o» 
Congress,  except  for  treason,  felony,  or  breach  of  the  peace. 

Art.  6.  No  State,  without  the  consent  of  the  United  States  in  Con 
gress  assembled,  shall  send  any  embassy  to,  or  receive  any  embassy  from, 
or  enter  intf)  any  conference,  agreement,  alliance,  or  treaty  with  any  king 


APPENDIX.  511 

prince,  or  state  ;  nor  shall  any  person  holding  any  office  of  profit  or  trust 
under  the  United  States,  or  any  of  them,  accept  of  any  present,  emolu- 
ment, office,  or  title  of  any  kind  whatever  from  any  king,  prince,  or  foreign 
state  ;  nor  shall  the  United  States  in  Congress  assembled,  or  any  of  them, 
grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty,  confederation,  or 
alliance  whatever  between  them,  without  the  consent  of  the  United  States 
in  Congress  assembled,  specifying  accurately  the  purposes  for  which  the 
same  is  to  be  entered  into,  and  how  long  it  shall  continue. 

No  State  shall  lay  any  imposts  or  duties,  which  may  interfere  with  any 
stipulations  in  treaties  entered  into  by  the  United  States  in  Congress 
assembled,  with  any  king,  prince,  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  Congress  to  the  courts  of  France  and  Spain. 

No  vessels  of  war  shall  be  kept  up  in  time  of  peace  by  any  State, 
except  such  number  only  as  shall  be  deemed  necessary  by  the  United 
States  in  Congress  assembled  for  the  defence  of  such  State  or  its  trade ; 
nor  shall  any  body  of  forces  be  kept  up  by  any  State,  in  time  of  peace, 
except  such  number  only  as,  in  the  judgment  of  the  United  States  in 
Congress  assembled,  shall  be  deemed  requisite  to  garrison  the  forts 
necessary  for  the  defence  of  such  State ;  but  every  State  shall  always 
keep  up  a  well-regulated  and  disciplined  militia,  sufficiently  armed  and 
accoutred,  and  shall  provide  and  have  constantly  ready  for  use,  in  public 
stores,  a  due  number  of  field-pieces  and  tents,  and  a  proper  quantity  of 
arms,  ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  consent  of  the  United 
States  in  Congress  assembled,  unless  such  State  be  actually  invaded  by 
enemies  or  shall  have  certain  advice  of  a  resolution  being  formed  by  some 
nation  of  Indians  to  invade  such  State,  and  the  danger  is  so  imminent  as 
not  to  admit  of  a  delay  till  the  United  States  in  Congress  assembled  can 
be  consulted  ;  nor  shall  any  State  grant  commission  to  any  ships  or  ves- 
sels of  war,  nor  letters  of  marque  or  reprisal,  except  it  be  after  a  decla- 
ration of  war  by  the  United  States  in  Congress  assembled,  and  then  only 
against  the  kingdom  or  state  and  the  subjects  thereof  against  which  war 
has  been  so  declared,  and  under  such  regulations  as  shall  be  established 
by  the  United  States  in  Congress  assembled,  unless  such  State  be  infested 
by  pirates,  in  which  case  vessels  of  war  may  be  fitted  out  for  that  occasion 
and  kept  so  long  as  the  danger  shall  continue,  or  until  the  United  States 
in  Congress  assembled  shall  determine  otherwise. 

Art.  7.  When  land  forces  are  raised  by  any  State  for  the  common 
defence,  all  officers  of  or  under  the  rank  of  colonel  shall  be  appointed  by 
the  legislatures  of  each  State  respectively  by  whom  such  forces  shall  bf 


512        THE  FEDERAL  CONSTITUTION. 

raised,  or  in  such  manner  as  such  State  shall  direct ;  and  all  vacancies 
shall  be  filled  up  by  the  State  which  first  made  the  appointment. 

Art.  8,  All  charges  of  war  and  all  other  expenses  that  shall  be  m- 
curred  for  the  common  defence  or  general  welfare,  and  allowed  by  the 
United  States  in  Congress  assembled,  shall  be  defrayed  out  of  a  common 
treasury,  which  shall  be  supplied  by  the  several  States  in  proportion  to 
the  value  of  all  land  within  each  State  granted  to  or  surveyed  for  any 
person,  as  such  land  and  the  buildings  and  improvements  thereon  shall  be 
estimated,  according  to  such  mode  as  the  United  States  in  Congress 
assembled  shall  from  time  to  time  direct  and  appoint. 

The  taxes  for  paying  that  proportion  shall  be  laid  and  levied  by  the 
authority  and  direction  of  the  legislatures  of  the  several  States,  within  the 
time  agreed  upon  by  the  United  States  in  Congress  assembled. 

Art.  9.  The  United  States  in  Congress  assembled  shall  have  the  sole 
and  exclusive  right  and  power  of  determining  on  peace  and  war,  except 
in  the  cases  mentioned  in  the  sixth  article  ;  of  sending  and  receiving  am- 
bassadors ;  entering  into  treaties  and  alliances,  provided  that  no  treaty  of 
commerce  shall  be  made,  whereby  the  legislative  power  of  the  respective 
States  shall  be  restrained  from  imposing  such  imposts  and  duties  on 
foreigners  as  their  own  people  are  subjected  to,  or  from  prohibiting  the 
exportation  or  importation  of  any  species  of  goods  or  commodities  what- 
soever ;  of  establishing  rules  for  deciding  in  all  cases  what  captures  on 
land  or  water  shall  be  legal,  and  in  what  manner  prizes  taken  by  land  or 
naval  forces  in  the  service  of  the  United  States  shall  be  divided  or  appro- 
priated ;  of  granting  letters  of  marque  and  reprisal  in  time  of  peace  ; 
appointing  courts  for  the  trial  of  piracies  and  felonies  committed  on  the 
high  seas,  and  establishing  courts  for  receiving  and  determining  finally 
appeals  in  all  cases  of  captures,  provided  that  no  member  of  Congress 
shall  be  appointed  judge  of  any  of  the  said  courts. 

The  United  States  in  Congress  assembled  shall  also  be  the  last  resort 
on  appeal  in  all  disputes  and  differences  now  subsisting  or  that  hereafter 
may  arise  between  two  or  more  States  concerning  boundary,  jurisdiction, 
or  any  other  cause  whatever,  which  authority  shall  always  be  exercised 
in  the  manner  following :  whenever  the  legislative  or  executive  authority 
or  lawful  agent  of  any  State  in  controversy  with  another  shall  present  a 
petition  to  Congress,  stating  the  matter  in  question  and  praying  for  a 
hearing,  notice  thereof  shall  be  given  by  order  of  Congress  to  the  legisla- 
tive or  executive  authority  of  the  other  State  in  controversy,  and  a  day 
assigned  for  the  appearance  of  the  parties  by  their  lawful  agents,  who 
shall  then  be  directed  to  appoint  by  joint  consent  commissioners  or  judges 
to  constitute  a  court  for  hearing  and  determining  the  matter  in  questiim  : 


APPENDIX.  513 

but  if  Jhey  cannot  agree,  Congress  shall  name  three  persons  out  of  each 
of  the  United  States,  and  from  the  list  of  such  persons  each  party  shall 
alternately  strike  out  one,  the  petitioners  beginning,  until  the  number 
shall  be  reduced  to  thirteen  ;  and  from  that  number  not  less  than  seven 
nor  more  than  nine  names,  as  Congress  shall  direct,  shall,  in  the  presence 
of  Congress,  be  drawn  out  by  lot ;  and  the  persons  whose  names  shall  be 
so  drawn,  or  any  five  of  them,  shall  be  commissioners  or  judges  to  hear 
and  finally  determine  the  controversy,  so  always  as  a  major  part  of  the 
judges  who  shall  hear  the  cause  shall  agree  in  the  determination :  and  if 
either  party  shall  neglect  to  attend  at  the  day  appointed,  without  showing 
reasons  which  Congress  shall  judge  sufficient,  or,  being  present,  shall 
refuse  to  strike,  the  Congress  shall  proceed  to  nominate  three  persons  out 
of  each  State,  and  the  Secretary  of  Congress  shall  strike  in  behalf  of  such 
party  absent  or  refusing ;  and  the  judgment  and  sentence  of  the  court  to 
be  appointed,  in  the  manner  before  prescribed,  shall  be  final  and  conclu- 
sive ;  and  if  any  of  the  parties  shall  refuse  to  submit  to  the  authority  of 
such  court,  or  to  appear  or  defend  their  claim  or  cause,  the  court  shall 
nevertheless  proceed  to  pronounce  sentence  or  judgment,  which  shall  in 
like  manner  be  final  and  decisive,  the  judgment  or  sentence  and  other 
proceedings  being  in  either  case  transmitted  to  Congress,  and  lodged 
among  the  acts  of  Congress,  for  the  security  of  the  parties  concerned  : 
provided,  that  every  commissioner,  before  he  sits  in  judgment,  shall  take 
an  oath,  to  be  administered  by  one  of  the  judges  of  the  Supreme  or  Su- 
perior Court  of  the  State  where  the  cause  shall  be  tried,  "  well  and  truly 
to  hear  and  determine  the  matter  in  question,  according  to  the  best  of  his 
judgment,  without  favor,  affection,  or  hope  of  reward  "  ;  provided,  also, 
that  no  State  shall  be  deprived  of  territory  for  the  benefit  of  the  United 
States. 

All  controversies  concerning  the  private  right  of  soil,  claimed  under 
different  grants  of  two  or  more  States,  whose  jurisdictions  as  they  may 
respect  such  lands  and  the  States  which  passed  such  grants  are  adjusted, 
the  said  grants  or  either  of  them  being  at  the  same  time  claimed  to  have 
originated  antecedent  to  such  settlement  of  jurisdiction,  shall,  on  the  peti- 
tion of  either  party  to  the  Congress  of  the  United  States,  be  finally  deter- 
mined, as  near  as  may  be  in  the  same  manner  as  is  before  prescribed  for  de- 
ciding disputes  respecting  territorial  jurisdiction  between  different  States. 

The  United  States  in  Congress  assembled  shall  also  have  the  sole  and 
exclusive  right  and  power  of  regulating  the  alloy  and  value  of  coin  struck 
by  their  own  authority,  or  by  that  of  the  respective  States ;  fixing  the 
standard  of  weights  and  measures  throughout  the  United  States;  regu- 
lating the  trade  and  managing  all  affairs  with  the  Indians  not  members  of 

VOL.  I.  65 


514        THE  FEDERAL  CONSTITUTION. 

any  of  the  States,  provided  that  the  legislative  right  of  any  State  within 
iis  own  limits  be  not  infringed  or  violated  ;  establishing  and  regulating 
post-offices  from  one  State  to  another  throughout  all  the  United  States, 
and  exacting  such  postage  on  the  papers  passing  through  the  same  as 
may  be  requisite  to  defray  the  expenses  of  the  said  office  ;  appointing  all 
officers  of  the  naval  forces,  and  commissioning  all  officers  whatever  in  the 
service  of  the  United  States  ;  making  rules  for  the  government  and  reg- 
ulation of  the  said  land  and  naval  forces,  and  directing  their  opera- 
tions. 

The  United  States  in  Congress  assembled  shall  have  authority  to 
appoint  a  committee  to  sit  in  the  recess  of  Congress,  to  be  denominated 
"  a  Committee  of  the  States,"  and  to  consist  of  one  delegate  from  each 
State,  and  to  appoint  such  other  committees  and  civil  officers  as  may  be 
necessary  for  managing  the  general  affairs  of  the  United  States,  under 
their  direction ;  to  appoint  one  of  their  number  to  preside,  provided  thdt 
no  person  be  allowed  to  serve  in  the  office  of  President  more  than  one 
year  in  any  term  of  three  years ;  to  ascertain  the  necessary  sums  of 
money  to  be  raised  for  the  service  of  the  United  States,  and  to  appropri- 
ate and  apply  the  same  for  defraying  the  public  expenses ;  to  borrow 
money  or  emit  bills  on  the  credit  of  the  United  States,  transmitting 
every  half-year  to  the  respective  States  an  account  of  the  sums  of  money 
so  borrowed  or  emitted  ;  to  build  and  equip  a  navy ;  to  agree  upon  the 
number  of  land  forces,  and  to  make  requisitions  from  each  State  for  its 
quota,  in  proportion  to  the  number  of  white  inhabitants  in  such  State ; 
which  requisition  shall  be  binding,  and  thereupon  the  legislature  of  each 
State  shall  appoint  the  regimental  officers,  raise  the  men,  and  clothe, 
arm,  and  equip  them  in  a  soldierlike  manner,  at  the  expense  of  the 
United  States;  and  the  officers  and  men  to  be  clothed,  armed,  and 
equipped  shall  march  to  the  place  appointed,  and  within  the  time  agreed 
on,  by  the  United  States  in  Congress  assembled  :  but  if  the  United  States 
in  Congress  assembled  shall,  on  consideration  of  circumstances,  judge 
proper  that  any  State  should  not  raise  men  or  should  raise  a  smaller 
number  than  its  quota,  and  that  any  other  State  should  raise  a  greater 
number  of  men  than  the  quota  thereof,  such  extra  number  shall  be  raised, 
officered,  clothed,  armed,  and  equipped  in  the  same  manner  as  the  quota 
of  such  State,  unless  the  legislature  of  such  State  shall  judge  that  such 
extra  number  cannot  be  safely  spared  out  of  the  same,  in  which  case  they 
shall  raise,  officer,  clothe,  arm,  and  equip  as  many  of  such  extra  number 
as  they  judge  can  be  safely  spared.  And  the  officers  and  men  so  clothed, 
armed,  and  equipped  shall  march  to  the  place  appointed,  and  within  the 
time  agreed  on,  bv  the  United  States  in  Congress  assembled 


APPENDIX.  515 

The  United  States  in  Congress  assembled  shall  never  engage  in  a  war 
nor  grant  letters  of  marque  and  reprisal  in  time  of  peace,  nor  enter  into 
any  treaties  or  alliances,  nor  coin  money  nor  regulate  the  value  thereof, 
nor  ascertain  the  sums  and  expenses  necessary  for  the  defence  and  welfare 
of  the  United  States,  or  any  of  them;  nor  emit  bills,  nor  borrow  money 
on  the  credit  of  the  United  States,  nor  appropriate  money,  nor  agree 
upon  the  number  of  vessels  of  war  to  be  built  or  purchased,  or  the  number 
of  land  or  sea  forces  to  be  raised,  nor  appoint  a  commander-in-chief  ol 
the  army  or  navy,  unless  nine  States  assent  to  the  same ;  nor  shall  a 
question  on  any  other  point,  except  for  adjourning  from  day  to  day,  be 
determined,  unless  by  the  votes  of  a  majority  of  the  United  States  in 
Congress  assembled. 

The  Congress  of  the  United  States  shall  have  power  to  adjourn  to  any 
time  within  the  year,  and  to  any  place  within  the  United  States,  so  that 
no  period  of  adjournment  be  for  a  longer  duration  than  the  space  of  six 
months,  and  shall  publish  the  journal  of  their  proceedings  monthly,  ex- 
cept such  parts  thereof  relating  to  treaties,  alliances,  or  military  opera- 
tions, as  in  their  judgment  require  secrecy ;  and  the  yeas  and  nays  of  the 
delegates  of  each  State  on  any  question  shall  be  entered  on  the  journal, 
when  it  is  desired  by  any  delegate ;  and  the  delegates  of  a  State,  or  any 
of  them,  at  his  or  their  request,  shall  be  furnished  with  a  transcript  of 
the  said  journal,  except  such  parts  as  are  above  excepted,  to  lay  before 
the  legislatures  of  the  several  States. 

Art.  10.  The  Committee  of  the  States,  or  any  nine  of  them,  shall  be 
authorized  to  execute,  in  the  recess  of  Congress,  such  of  the  powers  of 
Congress  as  the  United  States  in  Congress  assembled,  by  the  consent  of 
nine  States,  shall,  from  time  to  time,  think  expedient  to  vest  them  with, 
provided  that  no  power  be  delegated  to  the  said  Committee,  for  the  exer- 
cise of  which,  by  the  Articles  of  Confederation,  the  voice  of  nine  States 
in  the  Congress  of  the  United  States  assembled  is  requisite. 

Art.  11.  Canada,  acceding  to  this  Confederation,  and  joining  in  the 
measures  of  the  United  States,  shall  be  admitted  into  and  entitled  to  all 
the  advantages  of  this  Union  ;  but  no  other  Colony  shall  be  admitted  into 
the  same  unless  such  admission  be  agreed  to  by  nine  States. 

Art.  12.  All  bills  of  credit  emitted,  moneys  borrowed,  and  debts  con- 
tracted by  or  under  the  authority  of  Congress,  before  the  assembling  ol 
the  United  States,  in  pursuance  of  the  present  Confederation,  shall  be 
deemed  and  considered  as  a  charge  against  the  United  States,  for  pay- 
ment and  satisfaction  whereof  the  said  United  States  and  the  public  faith 
are  hereby  solemnly  pledged. 

Art.  13.  Every  State  shall  abide  by  the  determinations  of  the  United 


516        THE  FEDERAL  CONSTITUTION. 

States  in  Congress  assembled  on  all  questions  which  by  this  Confedera- 
tion are  submitted  to  them.  And  the  Articles  of  this  Confederation  shall 
be  inviolably  observed  by  every  State,  and  the  Union  shall  be  perpetual ; 
nor  shall  any  alteration  at  any  time  hereafter  be  made  in  any  of  them  ; 
unless  such  alteration  be  agreed  to  in  a  Congress  of  the  United  States, 
and  be  afterwards  confirmed  by  the  legislatures  of  every  State. 

These  Articles  shall  be  proposed  to  the  legislatures  of  all  the  United 
States,  to  be  considered,  and  if  approved  of  by  them,  they  are  advised  to 
authorize  their  delegates  to  ratify  the  same  in  the  Congress  of  the  United 
States  ;  which  being  done,  the  same  shall  become  conclusive. 


MEMBERS  OF  THE  CONVENTION  WHICH 
FORMED  THE  CONSTITUTION.* 

Those  with  numbers  before  their  names  signed  the  Constitution. 
Those  without  numbers  attended,  but  did  not  sign.  The  dates  denote  the 
first  day  of  their  attendance.     Those  in  italics  never  attended. 

New  Hampshire. 

1.  John  Langdon,  23  July.        2.  Nicholas  Oilman,        23  July. 

John  Pickering.  Benjamin  West. 

Massachusetts. 

Francis  Dana,  4.  Rufus  King,  25  May. 

Elbridge  Gerry,  29  May.  Caleb  Strong,  28  May. 

3.  Nathaniel  Gorham,      28  May. 

Rhode  Island.     [No  appointment.] 

Connecticut. 

5.  William  S.  Johnson,    2  June.  Oliver  Ellsworth,         29  May. 

6.  Roger  Sherman,         30  May. 


•  This  Table  is  taken  from  the  12tli  volume  ^f  Mr.  Sparks's  edition  o\ 
Washington's  Writings,  p.  426. 


APPENDIX.  517 

New  York. 

Robert  Yates,  25  May.  John  Lansing,  2  June. 

7.  A-lexander  Hamilton,  25  May. 

New  Jersey. 

8.  Williana  Livingston,     5  June.  John  Neilson. 

9.  David  Brearley,  25  May.  Abraham  Clark. 

William  C.  Houston,  25  May.       11.  Jonathan  Dayton,        21  June. 
10.  William  Patterson,     25  May. 

PeNNS  YL  VAXI A . 

12.  Benjamin  Franklin,  28  May.  16.  Thomas  Fitzsimons,  25  May. 

13.  Thomas  Mifflin,  28  May.  17.  Jared  Ingersoll,  28  May. 

14.  Robert  Morris,  25  May.  18.  James  Wilson,  25  May. 

15.  George  Clymer,  28  May.  19.  Gouverneur  Morris,  25  May. 

Delaware. 

20.  George  Read,  25  May.       23.  Richard  Bassett,  25  May 

21.  Gunning  Bedford,  Jr.  28  May.      24.  Jacob  Broom,  25  May. 

22.  John  Dickinson,  28  May. 

Maryland, 

25.  James  McHenry,         29  May.      27.  Daniel  Carroll,  9  July. 

26.  Daniel  of  St.  Thomas  John  Francis  Mercer,    6  Aug. 

Jenifer,  2  June.  Luther  Martin,  9  June 

Virginia.  , 

28.  George  Washington,  25  May.  George  Mason,  25  May. 
Patrick  Henrij  (declined).  George  Wythe,  25  May. 
Edmund  Randolph,     25  May.              James  McClurg  (in  the 

29.  John  Blair,  25  May.  room  of  P.  Henry)  25  May. 
30  James  Madison,  Jr.       25  May. 

North  Carolina. 

Richard  Caswell  (resigned).  Willie  Jones  (declined). 

Alexander  Martin,      25  May.  32.  Richard  D.  Spaight,   25  May 

William  R.  Davie,      25  May.  33.  Hugh  Williamson  (in  the 
31.  William  Blount  (in  the  room  of  W.  Jone;>),  25  May. 

room  of  R.Caswell)  20  June. 

South  Carolina. 

34.  John  Rutledge,  25  May.      36.  Charles  Pinckney,       25  May. 

35.  Charles  C.  Pinckney,  25  May.      37.   Pierce  Butler,  25  May 


518        THE  FEDERAL  CONSTITUTION. 


Georgia. 

38.  William  Few, 

25  May. 

39.  Abraham  Baldwin, 

11  June. 

William  Pierce 

31  Mav. 

George  Walton. 

William  Houstoun,       I  Juuc 

Nathaniel  Pendleton 


END    OP    TOL.    I. 


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